Gone with the Wind: Desertion and Divorce in Mississippi

Marriage is a beautiful concept that many people are willing to embrace. But, unfortunately, the struggles of marriage become a concept that some people realize that they cannot, or will not, endure. When marriage gets tough, some spouses initiate their “fight” receptors and seek to endure the struggles while others seek “flight” from the marriage. Fleeing marriage and a spouse is not uncommon, and in Mississippi, desertion–or abandonment by one spouse– may be a ground for divorce.

Under Mississippi law, “[w]illful, continued and obstinate desertion for the space of one (1) year” is grounds for divorce. MS § 93-5-1 (2014). In other words, a spouse’s intentional and continued abandonment of the other (innocent) spouse for one year or longer, without interruption by reconciliation, constitutes desertion. But, if the innocent spouse “provok[ed] the defendant [offending spouse] into the acts which constitute the alleged ground[ ] for divorce,” then a divorce will not be granted. Brown v. Brown, 2012-CA-00672-COA (Miss. Ct. App. Dec. 3, 2013), reh’g denied (Apr. 15, 2014) (citing Ammons v. Ammons, 144 Miss. 314, 318, 109 So. 795, 795 (1926)). Thus, the alleged offending spouse “may defend against a claim of desertion by ‘set[ting] up any misconduct of [the] plaintiff which justified the separation[.]'” Id. Further, to be clear, “desertion is an act of the offending spouse in relation to the marital status and not the place where the parties reside or their domicile.” N. SHELTON HAND, MISSISSIPPI DIVORCE, ALIMONY, AND CHILD CUSTODY § 4:9 (2013). Accordingly, desertion can occur even if the offending spouse remains within the marital home but is intentionally detached from the other spouse, including physical and emotional detachment.



Additionally, Mississippi recognizes “constructive” desertion. See Griffin v. Griffin, 42 So. 2d 720, 722 (Miss. 1949). “Constructive” desertion occurs if either spouse’s conduct would reasonably warrant separation and render continuance of the marriage unendurable. Day v. Day, 501 So. 2d 353, 356 (Miss. 1987) (citing Bunkley & Morse’s Amis, Divorce and Separation In Mississippi, § 3.11(12) (1957)). Consequently, the innocent spouse’s separation will be justified and not constitute desertion, and if the offending spouse’s endurable conduct justifying separation persists for a period of one year, then the innocent spouse will be entitled to divorce. Id. And often times, the doctrine of “constructive desertion” coincides with another fault-based ground for divorce–habitual cruel and inhuman treatment. See Benson v. Benson, 608 So. 2d 709 (Miss. 1992).

Marriage can be a tough at times. There are several counseling programs available to married spouses to help cope with the ups and downs of marriage; and counseling should always be the viable option to help with marital issues. However, for some, desertion or marital abandonment is an alternative to enduring marital issues, and many people are alienated by their spouses, albeit directly or constructively. Desertion is a very unfortunate event, but innocent, deserted spouses have the option of divorce in Mississippi. If you are considering divorce because of a spouse’s desertion or abandonment of the marriage, you should consult an experienced attorney. As an experienced divorce and family attorney practicing in Mississippi, I can help you navigate the complex issues of divorce and desertion. Should you or a friend need professional assistance and representation in a divorce or any other family matter, please contact the Law Office of M. Devin Whitt for a free consultation at (601) 607-5055.

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