divorce --desertion Flashcards
elements for desertion (4)
Cessation from cohabitation for one year;
Intent of the absenting party not to resume cohabitation;
Absence of consent and;
Absence of justification for the cessation
how is the year measured for dessertion and what does not count towards the time
Measured from the date of initial desertion to the time of filing
Subsequent litigation time does not count toward the expiration of the year
when can the intent to dessert be formed
it can be formed after they leave the home
what is the best practice for filing for divorce based on desertion and why
not to file for a divorce on desertion grounds until a year has passed from the time of the first OBJECTIVE MANIFESTATION of intent to desert, if the physical departure is not enough
what is an example of cessation from cohabitation
Locking a spouse out of the marital home may constitute cessation from cohabitation
what is intent in terms of desertion
a question of fact
does physical seperation alone establish an intent to desert?
no
what is absence of consent /why do we need it for this cause of action
because the party seeking the divorce on this ground by def cannot have consented to the spouse leaving; a seperation by MUTUAL CONSET does not support a finding of dessertion
in what situation would there be a ground for desertion for the original deserter; what is a excpetion to this
A refusal by the deserted spouse to accept a bona fide reconciliation offer; The refusing party becomes a deserter a year from the date of the refusal
excpetion – A refusal by the deserted spouse to accept a Bonafide reconciliation offer will not make one a deserter if the offer is insufficient
when must an offer of reconciliation by the deserting spouse be made
An offer needs to be made in good faith and must be made before the cause of action accrues
when is the grounds of desertion lost
if the abandoned spouse agrees to the separation during the year
The abandoned spouse must manifest an unwillingness to have the departed spouse return
is mere silence of the abandonded spouse consent?
probably not
what are examples of justification of cessation that would not give a cause of action of desertion even if the departure from the marital home is intentional and non consenusal (just one)
constructive desertion
what is constructive dessertion
Refers to situations where the party who leaves the martial hoe can seek a divorce on the ground of desertion because the departure was caused by the other spouse’s misconduct
what are other justifications for cessation that make action fall short of dessertion (4)
- est that departure was justficed by misconduct (can fall short of misconduct needed for divorce)
- a spouse’s failure to work and provide the necessities of life for the other spouse may justify a departure from the martial home
3Making life intolerable for a spouse might justify the departure of that spouse - if the spouse fails to protect other spouse from interference of their relatives
