One of many things that makes Virginia divorce law different from that of many other states is that Virginia still recognizes what are known as “fault grounds” for divorce. As we discussed in this post, these fault grounds include adultery, cruelty, felony incarceration, and desertion. In a divorce action, showing that your spouse has committed one of these actions, and that it directly led to the dissolution of the marriage, could affect whether you get spousal support, as well as how the court divides up the marital property.
Desertion is both the one of the easiest grounds to allege in divorce, as well as one of the easiest grounds to prove. It also has the advantage of allowing the plaintiff spouse to file a complaint for divorce right away, instead of having to wait six months (if there are no minor children born or adopted of the marriage) or one year (if there are minor children born or adopted of the marriage) for a “no-fault” divorce (more about that in this post. If your spouse has left the household, and he or she has expressed by words or actions that he or she does not intend to return, that constitutes desertion of the marriage.
This requirement of intent to end the marriage means that the following things do not constitute desertion for the purpose of filing for divorce in Virginia:
- If your spouse is on active military duty, and he or she is stationed elsewhere, that is not desertion.
- If your spouse has taken a job somewhere else, this may not be desertion.
- If you and your spouse live apart by mutual consent, for any reason, this may not be desertion.
- The deserting spouse must have intended to end the marriage when the desertion took place.
How can I tell if a desertion has taken place?
- Your spouse has expressly told you that he or she does not intend to return,
- Your spouse has ended all financial support,
- Your spouse has cut off all communication,
- Your spouse has forced you to leave the house and/or has prevented you from being able to enter the house (i.e. changing the locks)
If this all constitutes desertion, how can I end my marriage without affecting my support rights?
If you need to get out of your marriage but would need support, it can be puzzling trying to figure out how to leave. Maybe you need to supply all-day care for children, or maybe your spouse has inhibited your career or education opportunities. Getting out can be daunting by itself, and worrying about having money and a roof over your head can make it seem almost impossible. Schedule a consultation with one of our attorneys, and we can help you file your complaint, ask the court to grant financial support until your divorce is final, and make your best case to receive financial support after the entry of your final order. We can help you plan a divorce exit strategy while protecting your rights.
But what if I’ve already left? Am I really barred from support?
Not necessarily. Virginia has carved out exceptions and defenses to the bar to spousal support if one of the spouses has committed one of these fault based grounds. Consult an attorney today and we can help you protect your right to spousal support, even if you’ve already left your spouse or have asked your spouse to leave.