Should I leave the house? What is desertion?

One of the first things I always hear from clients is they had been told by "everyone" that the number one rule is not to leave the home. In many cases that is true, but it is not as iron clad as many people think. People also think leaving the home constitutes “desertion” as a ground for divorce and this is simply not true in most cases.

If you are in a divorce situation, you should not leave the home if you want to have it. If you want to keep something, you are better off asking the Judge to let you keep it than you are asking him to give it back. From another standpoint, if you leave the home and you later appear in court at a temporary hearing asking the judge to let you have use and occupancy of the home, the Judge may conclude that since you had already left, you had “voted with your feet,” and on a temporary basis he is not going to change that. On the other hand, if you had good reason to leave and you are granted custody of the child or children, there is a strong body of law that the custodial parent should be granted use of the home, even though they may have left it for a while.

If you have no children, or, if you have children and the means to support yourself and no desire to remain in the home, that is a circumstance where leaving the home may be a good idea.

Many people believe that they should not leave the home simply because that will be considered “desertion.” At some point, it could be, but the ground for divorce of desertion requires that a court find that you had left the marital home continuously for one year--without just cause--and refused to return, despite being asked. So, the ground of divorce of desertion takes quite of bit of time and facts to develop. It is, indeed, an extremely rare ground for divorce, given all that can happen in a year.

Whether or not to leave the home is a very complicated issue, and if the issue ever presents itself, you should immediately seek legal counsel.