Legal Question in Family Law in Maryland

Re: Constructive Desertion

I agree with Robert Sher that constructive desertion may be difficult to prove if you simply move out.

The more effective approach, in my professional experience, is for the abused spouse to look for an opportunity to have the abuser arrested for domestic violence. An exclusive use and possession order is usually "packaged" with the arrest, the assistant State's Attorney handles the prosecution ( saving you attorney fees), and -- if there is a conviction -- then the conviction may be used to help establish your constructive desertion. This approach is better undertaken with the advice of counsel familiar with case law in the area. Your counsel should coordinate with you so police get called at the right time on sufficient facts.

Re: Constructive Desertion

Constructive desertion is defined as a situation where one spouse makes life in the marital home so intolerable for the other that the victim-spouse has no real choice but to leave. Thus, even though the victim-spouse leaves, the law treats the other spouse as the deserter--hence the term "constructive".

This claim is often made but difficult to prove. Typical marital bickering would probably not be sufficient; you would probably have to demonstrate more severe conduct. What usually happens is that enough time goes by after a complaint is filed that you become eligible for divorce on the basis of a 2-yr separation before the final hearing, so you end up not having to prove constructive desertion.