Lately, I have had a large number of potential clients for a divorce on the basis of desertion. This somewhat concerns me for reasons that I will describe below. In the meantime, let’s discuss just how one can obtain a divorce for desertion in Mississippi.
According to statutes, a person may be eligible for a divorce in Mississippi if their spouse has deserted them for at least one year. The desertion must be “willful, continuous, and obstinate.” Let’s take a closer look at those terms.
“Willful” places the burden of intent upon the spouse who has supposedly deserted. For example, if, while your husband is at his summer training with the National Guard, you pack up all of your things, leave, and establish a new household elsewhere, your husband has not willfully deserted you; you have deserted him. Similarly, if your spouse is held hostage for over a year (hey, it could happen), that is not willful (unless he or she agreed to be held hostage, but then are they really a hostage?)
“Continuous” is fairly simple. That means that the period of desertion must be unbroken. Suppose your spouse leaves you on January 1. Then, let’s suppose the spouse comes back on March 2, but after a week, he or she decides to leave again. January 1 of the next year, some may consider your spouse to have abandoned you for one year, but it has not yet been a continuous one year because of the week that the spouse returned. The one continuous year of desertion will take place on March 9.
And then, there’s “obstinate”. Basically, this means that you must have attempted to get your spouse to move back to the marital residence. Obviously, if you do not know the current whereabouts of your spouse, you may not be able to request they move back in.
That brings me to my concern with divorces on the basis of desertion. In my experience, the great majority of divorces on desertion take place with the spouse who filed claiming that they do not know the current address for the spouse who deserted. In that situation, it may be necessary to have the “deserter” summoned to court by a notice published in the newspaper. In order for that to happen, the plaintiff must submit an affidavit that they have made “diligent inquiry” regarding the current whereabouts of the defendant.
Just what is diligent inquiry depends on the judge. In my opinion, you have not made a diligent inquiry until you have taken such steps such as calling the spouse’s phone number, make inquiries with the spouse’s family and relatives, performed one or more internet searches, and perhaps even paid for one of those services on the Internet.
In this information age, it is almost impossible to be unable to locate someone. Certainly, it is much harder to make a diligent inquiry and not locate someone than it was ten or twenty years ago. If you just Google someone’s name, you may find addresses, but you will most certainly see ads for services designed to help you find people.
It is my concern that when people do not actually make diligent inquiry, they are defrauding the courts, and we lawyers may be unknowingly assisting them do that.
