blog home Divorce Grounds for Divorce Part 1: Willful and Malicious Desertion

Grounds for Divorce Part 1: Willful and Malicious Desertion

By Sheryl Rentz on December 20, 2023

Two wedding bands on divorce papers with two hands

Deciding to end a marriage is a significant and often complex decision. Pennsylvania law has statutory provisions that recognize both no-fault and fault-based divorce grounds. Fault-based divorce grounds include:

  • Willful and malicious desertion: The court may grant a divorce to the innocent and injured spouse if the other spouse has committed willful and malicious desertion, with absence from the habitation of the injured spouse, without reasonable cause for a period of one or more years.
  • Adultery: Adultery is recognized as a ground for divorce in Pennsylvania.
  • Cruel and barbarous treatment: The court may grant a divorce if the other spouse has, by cruel and barbarous treatment, endangered the life or health of the innocent and injured spouse.
  • Bigamy: Knowingly entering into a bigamous marriage while a former marriage is still subsisting is considered a ground for divorce.
  • Imprisonment: The court may grant a divorce if the other spouse has been sentenced to imprisonment for a term of two or more years upon conviction of having committed a crime.
  • Indignities: The court may grant a divorce if the other spouse has offered such indignities to the innocent and injured spouse as to render their condition intolerable and life burdensome.

Willful and malicious desertion refers to a situation where one spouse voluntarily leaves the marital home with the intent to end the marriage. It goes beyond a temporary separation and involves a deliberate decision to abandon the marital relationship. Legal requirements and specific elements must be met to establish willful and malicious desertion as grounds for divorce.

Duration and Intent Requirements

Desertion typically needs to be of a certain duration to qualify as grounds for divorce. Courts may consider a continuous period of abandonment, ranging from several months to years, depending on the jurisdiction.

Proving the intent behind the desertion is crucial. It requires demonstrating that the departing spouse had the willful and malicious intent to abandon the marital relationship. The court carefully assesses the circumstances surrounding the desertion to establish this intent.

Documenting Desertion

Documenting instances of willful and malicious desertion is essential for building a case. Maintaining a detailed record of events, including dates of departure, communication, and any attempts at reconciliation, can strengthen the evidence supporting the claim of desertion.

Legal Process for Filing Based on Desertion

Initiating a divorce based on willful and malicious desertion involves a specific legal process. Understanding the necessary steps, from filing the initial paperwork to attending court hearings, is crucial for a smooth and effective divorce proceeding.

Impact on Division of Assets and Alimony

The choice of grounds for divorce, such as desertion, can have implications for the division of marital property. Courts may consider the circumstances surrounding the desertion when determining how assets should be divided. Additionally, desertion may impact the awarding of alimony or spousal support.

Child Custody and Support in Desertion Cases

The court’s approach to child custody is carefully considered when desertion is a factor. In general, the well-being and best interests of the child govern how the court will determine custody. In assessing the best interest of the child, the court considers the following factors:

  • Encouraging contact: The court looks at which parent is more likely to support frequent contact between the child and the other parent.
  • Safety and abuse: The court assesses if there’s any history of abuse in a parent’s household, the risk of harm to the child, and who can provide better safety and supervision.
  • Child abuse and protective services: The court considers information related to child abuse and involvement with protective services.
  • Parental duties: The court looks at the responsibilities each parent has fulfilled for the child.
  • Stability and continuity: The court considers the need for stability in the child’s education, family, and community life.
  • Extended family: The court assesses the availability of support from extended family.
  • Siblings: The court considers the relationships the child has with siblings.
  • Child’s preference: The court considers the child’s preference based on their maturity and judgment.
  • Parental behavior: The court considers whether a parent has tried to turn the child against the other parent, except in cases of domestic violence where safety measures are necessary.
  • Loving relationship: The court assesses which parent is more likely to maintain a loving, stable, and consistent relationship, meeting the child’s emotional needs.
  • Daily care: The court considers who is more likely to attend to the daily needs of the child, including physical, emotional, developmental, and educational aspects.
  • Proximity of residences: The court looks at how close each parent lives to each other.
  • Availability for childcare: The court assesses each parent’s availability and ability to make appropriate childcare arrangements.
  • Conflict level: The court considers the level of conflict between the parents and their willingness and ability to cooperate. Protecting a child from abuse is not seen as evidence of unwillingness to cooperate.
  • History of substance abuse: The court considers any history of drug or alcohol abuse by a parent or someone in their household.
  • Mental and physical health: The court assesses the mental and physical condition of a parent or someone in their household.
  • Other relevant factors: Any other factors relevant to the well-being and best interests of the child are also considered.

Accordingly, the court evaluates the impact of desertion on the child’s life when determining custody arrangements and support.

Navigating Emotional Challenges and How a Montgomery County Divorce Attorney Can Help

Emotions often run high during divorce proceedings, and having a dedicated Montgomery County divorce lawyer by your side can make a significant difference. Sheryl R. Rentz, with her experience and commitment to her clients, can guide you through the legal process, ensuring your rights are protected.

If you find yourself facing divorce based on willful and malicious desertion, contact us at (866) 290-9292 (toll-free) to schedule a consultation. Our team at the Law Offices of Sheryl R. Rentz P.C. is here to assist you in moving forward with confidence and securing a better future for yourself.

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