How Is Abandonment Determined in Virginia Courts?

By Beverly Bird
If you can establish abandonment, it can affect property division.

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There are usually easier and much faster ways to divorce than by proving abandonment, but this isn't necessarily the case in Virginia. To file for no-fault divorce, the state requires a year of voluntary separation, assuming you have children. As a result, filing for divorce based on abandonment is typically no quicker than filing on grounds of involuntary separation because your spouse left you. All things being equal, however, there may be some advantage to filing on grounds of abandonment if your situation meets Virginia's legal criteria.

Intent to End the Marriage

Abandonment is technically called desertion in the Virginia statutes, but the two terms are used interchangeably. Your spouse has abandoned you if he has left the marital home with no intention of returning. If he leaves because he wants to think about whether he’d like to stay married, this technically isn't desertion or abandonment – yet. It becomes abandonment when he tells you he's made up his mind, and he's not coming home. Additionally, the court will consider it abandonment only if this happened against your wishes and you did nothing to drive him out the door. You must bring a witness to court to corroborate your grounds before the court will finalize your divorce.

Duration of Absence

If your spouse tells you that your marriage is done and if he leaves tonight, you cannot file for divorce tomorrow. Virginia law requires that you must wait a year. If he returns home during that time, you've lost your grounds for desertion, but you may file on other grounds instead. An exception to the year's wait exists if you file for a limited divorce from bed and board. This is the state's equivalent of a legal separation. It won't end your marriage, but you can file on grounds of desertion immediately if you need financial assistance, such as alimony, in a hurry. You must live apart for a year to meet Virginia's no-fault grounds of separation as well, although if you don't have children and you enter into a settlement agreement with your spouse, the waiting period is only six months.

Constructive Desertion

Virginia also recognizes constructive desertion as grounds for divorce, which means your spouse ended your marriage without actually departing the marital home. You may or may not have left yourself because of his behavior. For example, if he curtailed your marital relationship, refusing to have sex with you any longer, this can be constructive desertion if he also abandoned the marital relationship in other respects – he set up his own checking account, stopped contributing to household bills and has otherwise lived his own life, even if he's still under the same roof. If you feel that you must leave the home because he's being cruel to you or making your life intolerable, you are not guilty of abandonment under Virginia's statutes – this, too, is considered constructive desertion.

Effect on Divorce Proceedings

Filing for divorce on fault grounds can affect property division, alimony issues and even child custody in Virginia. When deciding alimony and property division, judges are permitted by statute to consider why the marriage ended. You can therefore expect that your spouse might put up a fight if you accuse him of abandonment or constructive desertion, although if he actually leaves the home for a year or more, this may make it easier for you to prove your grounds to the court's satisfaction.

About the Author

Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.

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