Cagle v. Cagle, 193 Ga. 34 (1941), breaks the ground down. “Its affirmative natural elements are two: the cohabitation ended, and the offending party’s intent to desert. The statute creates a third affirmative element, the lapse of a definite period of time.”
The Two Natural Elements
Cohabitation has to have ended, and the departing spouse has to have meant to desert. Intent is what separates desertion from a job transfer, a hospital stay, or a separation both spouses wanted.
The Statutory Element
The third element is time. Under OCGA 19-5-3(7) the desertion must be willful and continued “for the term of one year.”
Monroe v. Monroe, 218 Ga. 353 (1962), shows that the year is measured against the filing. The Georgia Supreme Court set aside a verdict because “[t]he evidence fail[ed] to show wilful desertion on the part of the defendant for a period of one year prior to the filing of the divorce action.”
The Negative Requirements
Cagle adds two things that must not be true. “Negatively, it must be without legal justification, and without a breach of the continuity which the statute renders essential.”
So a spouse who leaves for good reason has not deserted, and a year that is interrupted by a resumed cohabitation starts over.
What Is Not Desertion
Cagle itself failed on this point. The wife’s petition alleged that her husband would not work or support the family, and called that desertion. The Court held she had “predicated her case on the erroneous conception that a husband’s failure or refusal to support his family constitutes a desertion.” Nonsupport is not desertion. Cohabitation has to end.
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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!