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DESERTION (UTTER DESERTION)
The elements which must be proved for a divorce to be granted under the grounds of utter desertion are listed in M.G.L Chapter 208, Section 22 (immediately below):
Chapter 208: Section 22. Desertion; proof
Section 22. In order to establish grounds for divorce for desertion, the plaintiff shall establish that the defendant left voluntarily and without justification and with intent not to return, that at the time such defendant left, the plaintiff did not consent thereto, and that the defendant failed to cohabit with the plaintiff for at least one year next prior to the date of the filing of the action. An action for divorce for desertion shall not be defeated by a temporary return or other act of the defendant if the court finds that such return or other act was not made or done in good faith, but with intent to defeat such action. The prior filing of an action for divorce or separate support shall not be deemed to raise a conclusive presumption to defeat an action for divorce for desertion.
In order to grant a divorce under the grounds of desertion, most Courts will require testimony that the party alledging the desertion would have "taken back" the deserting spouse if they had returned to the marital home within the one year period. Pro-Se litigants are often observed in open court making the mistake of alleging these grounds and then testifying that they wouldn't have taken the spouse back.
As in other fault based grounds, it is usually wise to plead an irretrievable breakdown as alternate grounds for the court to grant the divorce.
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