Avoiding a Desertion Glitch
September 22, 2016 § 1 Comment
MCA 93-5-1 provides that the court may grant a divorce on the ground of “Willful, continued and obstinate desertion for the space of one (1) year.”
It’s often said that desertion is the easiest ground to prove as an uncontested divorce. It’s fairly straightforward:
- Separation without fault on the part of the complaining party;
- Continued, obstinate, intentional, and unjustifiable separation for more than a year.
But there’s another element that you need to include in your proof. In the case of Lynch v. Lynch, 217 Miss. 69, 63 So.2d 657, 653 (1953), the court said:
In matter of law, a deserted party must stand ready to receive the other back, if the offer to return is made in good faith, not otherwise, at any time before the statutory period has fully run. But when the desertion has ripened into a ground for divorce, the day of repentance has ended, and the one in whom is the right may refuse.”
In 21st-century language, this means that: (a) during the one-year desertion period, the deserted party must have been willing to allow the deserter to return home if a good-faith offer to return would have been made; and (b) after the one-year period has expired, that duty expires also.
So you must ask your client in his or her testimony to this effect: “If the other party had offered to give up his paramour, and to repent of his ways and to return home in good faith, would you have taken him back?” If the answer is affirmative, you will be successful if the other elements are proven and there is corroborating testimony.
I’ve seen some uncontested divorces come unravelled because the complaining party didn’t seem to have ever heard of this concept.
Before setting off for court, sit your client down and explain this requirement. What most clients think when confronted with the question is, “Horrors, I never want to see that monster again since he left me for that other woman!” Once they understand that the willingness to resume cohabitation, if there is a good-faith offer to reconcile, applies only to that one-year period now elapsed, they relax. There is no requirement to take the deserter back after the one-year period has expired — good faith or no.
[…] path to a divorce. Not only must you make an “extreme case,” but you also have to prove the elements of desertion, about which I posted at this link. And don’t forget that the burden of proof is by clear and convincing evidence (HCIT is the […]