Yes. Desertion in Georgia is about the end of cohabitation, not about who moved out.
The Rule
Whitfield v. Whitfield, 89 Ga. 471 (1892), established it, and Wilkinson v. Wilkinson, 159 Ga. 332 (1924), quotes the holding in full:
“Within the meaning of the law of divorce, it is desertion by the wife, though she continue to reside in the matrimonial domicile, for her wilfully, persistently, and without justification to deny her husband all his conjugal rights with the intention of casting him off as a husband completely and forever.”
Whitfield added that it does not matter where the other spouse ends up. The ground is available “whether the husband remains in the matrimonial domicile occupying separate apartments from his wife, or withdraws from the house and lives elsewhere,” so long as the conduct is “contrary to and against his will.”
What Has to Be Pled
Wilkinson itself concerned a couple who lived under the same roof for years while occupying separate bedrooms, until the wife eventually moved to Florida.
The Georgia Supreme Court held the petition sufficient. Allegations that a spouse “persistently and continuously declined” to accord conjugal rights, and did so “wilfully and persistently and without justification,” survive a demurrer even without reciting the phrase about casting the other off completely and forever.
Two Cautions
Both decisions applied the three-year period that Georgia law then required. The General Assembly shortened it to one year in 1946.
And the conduct must be willful and unjustified. An illness, or a separation both spouses accept, is not this.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!