Desertion Penalty in a Maryland Divorce

By Cindy Chung

When a relationship goes through a difficult time or reaches an end, a husband or wife may decide to leave the marital home. If one spouse leaves or abandons the other, desertion may become a legal issue if the couple divorces in Maryland. In some cases, spousal desertion can penalize a spouse in alimony, property and other divorce-related legal issues.

Legal Definition of Desertion

Maryland divorce laws define two types of desertion: actual desertion and constructive desertion. A husband or wife may engage in actual desertion by choosing to leave the marriage and family home or by ejecting the other spouse from the family home. In constructive desertion, one spouse's misconduct or mistreatment of the other spouse causes the offended spouse to leave. The spouse who engages in misconduct is the party who deserted the other spouse — for example, the offending spouse may engage in constructive desertion by placing the leaving spouse in physical or mental danger for an extended period of time. If established, both types of desertion may lead to penalties for the deserting spouse during divorce proceedings and the negotiation of legal issues.

Desertion as Grounds for Divorce

Actual desertion and constructive desertion serve as grounds for divorce in Maryland. In an absolute divorce, which permanently ends the marriage and frees the spouses for remarriage, desertion often allows the abandoned spouse to obtain a fault-based divorce. A deserted spouse can also file for a limited divorce, which allows the couple to resolve some legal issues, such as property or alimony, before the spouses meet the state requirements for an absolute divorce. An absolute divorce based on actual desertion requires a separation of at least 12 months, whereas a limited divorce does not require a minimum duration.

Legal Consequences of Spousal Desertion

Actual desertion or constructive desertion as grounds for divorce can affect the terms of the divorce. Maryland state divorce laws allow the courts to consider any fault grounds established as the basis for the divorce when determining alimony and property division. The court may specifically consider the cause of the breakdown in the couple's relationship and any circumstances which led to the spouses' estrangement. If one spouse deserted the other, the court may be able to decide alimony and property division in favor of the abandoned spouse. However, court orders regarding property distribution and alimony must take into account a variety of factors in addition to the desertion.

Desertion Vs. Voluntary Separation

If one spouse decides to leave and the other gives consent, the act of leaving might be considered voluntary separation rather than desertion. In a voluntary separation, the spouses might agree to separate or one spouse might concede when the other spouse indicates that the decision to leave will not change. A voluntary separation by agreement often results in no-fault divorce and does not provide grounds for a fault-based divorce. No-fault divorce based on irreconcilable differences and a period of separation generally does not result in a desertion penalty during divorce.