Also known as: desert · deserts · deserted · deserting · deserter · deserters · abandonment
Written by attorneys — see sources below.
3 senses
The abandonment of a criminal purpose after the defendant has taken an overt act toward commission of the crime. Under the traditional common law rule, such abandonment provides no defense to attempt once preparation has ripened into an overt act. The Model Penal Code recognizes an affirmative defense of complete and voluntary renunciation when the actor abandons the effort under circumstances showing a genuine change of heart rather than fear of detection.
Willful and unjustified departure from the marital home or from spousal and parental duties with intent not to resume cohabitation. Desertion constitutes a traditional fault ground for divorce when it lasts for the statutory period, lacks consent, and is unexcused by the other spouse's misconduct. In adoption proceedings, a parent's desertion or failure to support for the statutory period may eliminate the need for that parent's consent.
The voluntary relinquishment of a property interest or use right, demonstrated by cessation of the activity coupled with intent to abandon. In zoning, prolonged abandonment of a nonconforming use may extinguish the owner's vested right to continue it. In landlord-tenant law, a tenant's abandonment of the premises constitutes an offer of surrender that the landlord may accept, terminating the lease and limiting the tenant's liability to accrued rent and damages.
Each sense below has its own examples, sources, and questions.
The abandonment of a criminal purpose after the defendant has taken an overt act toward commission of the crime. Under the traditional common law rule, such abandonment provides no defense to attempt once preparation has ripened into an overt act. The Model Penal Code recognizes an affirmative defense of complete and voluntary renunciation when the actor abandons the effort under circumstances showing a genuine change of heart rather than fear of detection.
Demetrius Douglas purchased the necessary chemicals and began mixing them in his garage to manufacture methamphetamine. After completing the first step of the synthesis, he decided to stop because he feared police surveillance. The state charged him with attempt to manufacture a controlled substance. Because Douglas had already performed an overt act with the requisite intent, his later change of mind supplied no defense.
David Dawson drove to the bank with a loaded gun intending to commit robbery. While parked outside he experienced a genuine change of heart, threw the gun in a river, and returned home. Under the Model Penal Code, Dawson may assert the affirmative defense of complete and voluntary renunciation because his decision was not prompted by increased risk of detection.
2 common questions
Under the traditional common law rule, once the defendant has crossed the line from preparation to an overt act, subsequent abandonment or withdrawal supplies no defense to attempt.
Supporting sources
The Model Penal Code creates an affirmative defense of complete and voluntary renunciation when the actor abandons the effort under circumstances manifesting a genuine change of heart rather than fear of detection or postponement of the crime.
Willful and unjustified departure from the marital home or from spousal and parental duties with intent not to resume cohabitation. Desertion constitutes a traditional fault ground for divorce when it lasts for the statutory period, lacks consent, and is unexcused by the other spouse's misconduct. In adoption proceedings, a parent's desertion or failure to support for the statutory period may eliminate the need for that parent's consent.
Deborah Dunn left her newborn with the father and moved out of state, providing no support or contact for eighteen months. When the father petitioned to place the child for adoption, the court waived Deborah's consent. Her prolonged desertion and failure to support satisfied the statutory ground that eliminated the need for her approval.
Deanna Davenport gave birth to a child fathered by an unmarried man who never visited, paid support, or sought custody. When she placed the child for adoption, the biological father received no notice and could not object. His complete failure to manifest parental responsibility constituted abandonment that eliminated any constitutional interest in vetoing the adoption.
3 common questions
Many states have replaced fault-based grounds such as desertion with the single no-fault ground of irretrievable breakdown. Even in those states, evidence of desertion may still be relevant to show that the marriage is irretrievably broken or to support claims for alimony or property division.
Supporting sources
The voluntary relinquishment of a property interest or use right, demonstrated by cessation of the activity coupled with intent to abandon. In zoning, prolonged abandonment of a nonconforming use may extinguish the owner's vested right to continue it. In landlord-tenant law, a tenant's abandonment of the premises constitutes an offer of surrender that the landlord may accept, terminating the lease and limiting the tenant's liability to accrued rent and damages.
Dylan Duffy operated a small machine shop in a building that later became zoned residential. After the shop closed for seven years, Duffy sought to reopen it as a nonconforming use. The city denied the application because the extended cessation constituted abandonment that extinguished the vested right to continue the prior use.
Dominic Drake vacated his commercial leasehold, removed all equipment, and mailed the keys to the landlord. The landlord accepted the keys and relet the space to a new tenant. By accepting the surrender inherent in the abandonment, the landlord terminated the lease and limited Drake's liability to rent accrued before acceptance plus any damages from the vacancy.
…discussion of the original understanding and our first century and a half of case law does not necessarily require a wholesale abandonment of our more recent opinions. It simply reveals that our substantial effects test is far removed from both the Constitution and from our early case law and that the Court's opinion should…
…who happen at the time to be Members of this Court. That history counsels caution and restraint. But it does not counsel abandonment, nor does it require what the city urges here: cutting off any protection of family rights at the first convenient, if arbitrary boundary—the boundary of the nuclear family. Appropriate…
…thing], to guard that interest by persons who are in a situation to protect it." In the case before us there is, of course, no abandonment. On the other hand these beneficiaries do have a resident fiduciary as caretaker of their interest in this property. But it is their caretaker who in the accounting becomes their adversary.…
…notions of fairness" that this Court applies may change. But the States have overwhelmingly declined to adopt such limitation or abandonment, evidently not considering it to be progress. The question is whether, armed with no authority other than individual Justices' perceptions of fairness that conflict with both past…
Supporting sources
The five elements are cessation of cohabitation, lapse of the statutory period, intent to abandon, lack of consent by the abandoned spouse, and absence of misconduct by the abandoned spouse that would justify the departure.
Consent is unnecessary when a parent has abandoned the child or failed to support the child for the statutory period, or when the parent has never attempted to establish a legal or personal relationship with the child.
Supporting sources