No. Accepting money from the spouse who left does not turn a desertion into an agreed separation.
Why the Question Comes Up
Consent is a defense. Georgia defines desertion as a separation “without justification either in the consent or the wrongful conduct of the other,” so a spouse defending a desertion claim has reason to argue that the other agreed to the arrangement.
Continuing to pay bills, and continuing to accept the payments, can be made to look like such an agreement.
The Answer
Allen v. Allen, 194 Ga. 591 (1942), rejected exactly that argument. The wife sued for divorce on desertion and cruel treatment, and her husband demurred, pointing out that he had supported her throughout the separation and that she had taken the money.
The Georgia Supreme Court held the petition good. “Allegations that during the separation he paid certain bills of the wife and made contributions to her support, in accordance with his legal duty, and that she accepted or permitted such payments, would not show any agreement or consent on her part to the separation, such as would defeat her action on the ground of desertion.”
The phrase carrying the weight is “in accordance with his legal duty.” A spouse who pays support is doing what the law already requires. Doing your duty is not the same as striking a bargain.
What Would Count
Real consent still defeats the claim. Allen itself noted that “a separation based merely on a voluntary agreement by both parties that they shall live apart will not constitute the necessary element of wilfulness.”
So an actual agreement to live separately matters. Cashing a check does not.
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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!