Often our clients come to us because they feel trapped in a marriage which is not just unsatisfying, but almost abusive. For example, a wife may come to us and report that her husband is an alcoholic; refuses to work; contributes nothing financially; repeatedly yells and screams at her in front of the children; constantly uses profanity to demean and insult her. She feels trapped, because she is concerned that if she leaves the family home she may lose certain rights and be sued by her husband for divorce.
This is where the tool of constructive desertion can be utilized to protect the wife in that hypothetical situation. Normally, if one marriage partner leaves the family home without justification, it is considered desertion; and the party who remains can file for divorce on that ground. However, a constructive desertion occurs when conduct by one spouse renders impossible the continuation of the marriage relationship by the other spouse with safety and self-respect. The offensive conduct of the one spouse must be such as to compel the other to leave. In essence, the constructive desertion doctrine applies when the party is forced to leave by cruel and dangerous conduct of the other spouse that creates a genuine fear about her safety, health and self-respect.
In the hypothetical situation described above, if the wife were to choose to leave her home, she could justifiably claim that her husband is guilty of constructive desertion. Even though the husband remained in the home, he constructively deserted her by in essence forcing her to leave to maintain her safety, health and self-respect.
The wife in this hypothetical could relocate to a new, safe location and justifiably take her children with her if it is in their best interests. She also could file an action for limited divorce to obtain marital or child support from the husband, if he is financially able to pay it.
Often the stresses in a marriage make it seem like each spouse has no reasonable option. However, instead the doctrine of constructive desertion can be utilized to allow a spouse who has been treated in an offensive and disrespectful way to relocate to a safe, healthy environment. This decision is not an easy one, and should be made only after consulting with your attorney.
We serve clients throughout Baltimore County, Harford County, Carroll County and Howard County, as well as residents of Towson, Bel Air, Columbia, Elliott City, Westminster and Essex at our offices conveniently located in Hunt Valley, Towson and Pikesville, Maryland. Call 443-589-0150 or contact us online for a no-cost consultation.