Desertion in Georgia has to be willful, and a spouse who is mentally ill cannot form the intent the ground requires.
What the Statute Requires
OCGA 19-5-3(7) makes a ground of “[w]illful and continued desertion by either of the parties for the term of one year.” Two words there do the work. The leaving has to be willful, and it has to continue for the whole year.
Illness During the Year Defeats Both
This is the part people miss. You do not have to have been ill on the day you left. Mental illness that arrives partway through the statutory period stops the clock, because the desertion is no longer willful for the rest of it.
That was the holding in Zeigler v. Zeigler, 149 Ga. 508 (1919). The Georgia Supreme Court later described the case this way in Huguley v. Huguley, 204 Ga. 692 (1949): “since the ground upon which the divorce was sought was three years’ continued wilful desertion, and it appeared that the defendant became insane before the three years had elapsed, a divorce upon the ground alleged was unauthorized.”
The period was three years when Zeigler was decided. Under the statute as it reads today it is one year, but the principle is the same. If the illness set in before the year was up, the ground fails.
What This Means for You
If your spouse has filed for divorce on desertion, the dates matter as much as anything else. When the separation began, when a diagnosis or a hospitalization occurred, and when the petition was filed can decide the case between them. Medical records and admission dates are usually the proof.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!