desertion

Desertion

The act by which a person abandons and forsakes, without justification, a condition of public, social, or family life, renouncing its responsibilities and evading its duties. A willful Abandonment of an employment or duty in violation of a legal or moral obligation.

Criminal desertion is a husband's or wife's abandonment or willful failure without Just Cause to provide for the care, protection, or support of a spouse who is in ill health or necessitous circumstances.

Desertion, which is called abandonment in some statutes, is a Divorce ground in a majority of states. Most statutes mandate that the abandonment continue for a certain period of time before a divorce action may be commenced. The length of this period varies between one and five years; it is most commonly one year. The period of separation must be continuous and uninterrupted. In addition, proof that the departed spouse left without the consent of the other spouse is required in most states.

Ordinarily, proof of desertion is a clear-cut factual matter. Courts generally require evidence that the departure was voluntary and that the deserted husband or wife in no way provoked or agreed to the abandonment. Constructive desertion occurs when one party makes life so intolerable for his or her spouse that the spouse has no real choice but to leave the marital home. For an individual to have legal justification for departing, it is often required that the spouse act so wrongfully as to constitute grounds for divorce. For example, a wife might leave her husband if she finds that he is guilty of Adultery.

In desertion cases, it is not necessary to prove the emotional state of the abandoning spouse, but only the intent to break off matrimonial ties with no animus revertendi, the intention to return.

Mere separation does not constitute desertion if a Husband and Wife agree that they cannot cohabit harmoniously. Sexual relations between the parties must be totally severed during the period of separation. If two people live apart from one another but meet on a regular basis for sex, this does not constitute desertion. State law dictates whether or not an infrequent meeting for sexual relations amounts to an interruption of the period required for desertion. Some statutes provide that an occasional act of sexual intercourse terminates the period only if the husband and wife are attempting reconciliation.

Unintentional abandonment is not desertion. For example, if a man is missing in action while serving in the Armed Services, his wife may not obtain a divorce on desertion grounds since her spouse did not intend to leave his family and flee the marital relationship. The Common Law allows an individual to presume that a spouse is dead if the spouse is unexplainably absent for a seven-year period. If the spouse returns at any time, the marriage remains intact under common law.

Laws that embody the Enoch Arden Doctrine grant a divorce if evidence establishes that an individual's spouse has vanished and cannot be found through diligent efforts. A particular period of time must elapse. Sometimes, if conditions evidencing death can be exhibited, a divorce may be granted prior to the expiration of the time specified by law.

In some jurisdictions, the law is stringent regarding divorce grounds. In such instances, an Enoch Arden decree might be labeled a dissolution of the marriage rather than a divorce.

Upon the granting of an Enoch Arden decree, the marriage is terminated regardless of whether or not the absent spouse returns. Generally, the court provides that the plaintiff must show precisely what has been done to locate the missing person. Efforts to find the absent spouse might include inquiries made to friends or relatives to determine if they have had contact with the missing spouse, or checking public records for such documents as a marriage license, death certificate, tax returns, or application for Social Security in locations where the individual is known to have resided.

Desertion is frequently coupled with non-support, which is a failure to provide monetary resources for those to whom such an obligation is due. Nonsupport is a crime in a majority of states but prosecutions are uncommon.

desertion

n. the act of abandoning, particularly leaving one's spouse and/or children without an intent to return. In desertion cases it is often expected that a deserter who is the family breadwinner may not intend to support the family he/she left. Such conduct is less significant legally in the present era of no-fault divorce and standardized rights to child support and alimony (spousal support). Desertion can influence a court in determining visitation, custody and other post-marital issues.

desertion

DESERTION, crim. law. An offence which consists in the abandonment of the public service, in the army or navy, without leave.
     2. The Act of March 16, 1802, s. 19, enacts, that if any non- commissioned officer, musician, or private, shall desert the service of the United States, he shall, in addition to the penalties mentioned in the rules and articles of war, be liable to serve for and during such period as shall, with the time he may have served previous to his desertion, amount to the full term of his enlistment; and such soldier shall and may be tried by a court-martial, and punished, although the term of his enlistment may have elapsed previous to his being apprehended or tried.
     3. By the articles of war, it is enacted, that "any non-commissioned officer or soldier who shall, without leave from his commanding officer, absent himself from his troop, company, or detachment, shall, upon being convicted thereof, be punished, according to the nature of his offence, at the discretion of a court-martial." Art. 21.
     4. By the articles for the government of the navy, art. 16, it is enacted, that "if any person in the navy shall desert to an enemy, or rebel, he shall suffer death;" and by art. 17, "if any person in the navy shall desert, or shall entice others to desert, he shall suffer death, or such other punishment as a court-martial shall adjudge."

DESERTION, torts. The act by which a man abandons his wife and children, or either of them.
     2. On proof of desertion, the courts possess the power to grant the 'Wife, or such children as have been deserted, alimony (q.v.)

DESERTION, MALICIOUS. The act of a husband or wife, in leaving a consort, without just cause, for the purpose of causing a perpetual separation. Vide Abandonment, malicious.