Even though most people these days live with their soon-to-be ex husband for a period of time during their legal separation, for most people it’s not a whole lot of fun. For others, it’s impossible.
Depending on the specific factors that brought your marriage to this point, living together may be more or less feasible in some cases than others. (In some, it can be downright unsafe!) But probably you’ve heard about desertion as grounds for divorce – and desertion can arise fairly simply, if one party or the other leaves the marriage, including just leaving the marital residence – and you may or may not be worried about the possible implications if you decide that it’s better to, say, rent an apartment or stay with your parents.
Can I leave the house? It’s a bad environment.
Well, no. At least, you can’t just up and leave without a little bit more planning. Technically, leaving the marital residence could constitute desertion and, even though it’s among the weakest of the fault based grounds, it’s still something that you should be aware of and a little bit cautious about.
This article isn’t a discussion of fault based grounds, how they work, or strategic decisions related to whether to file on fault. For that, I suggest you check out this article and maybe this one, too. Today, we’re just here to discuss what you risk if you leave without a previous agreement, or some other strategic planning with your attorney.
Technically, under Virginia’s equitable distribution laws, you risk a disproportionate award of the assets if your fault (here, your desertion) was a negative nonmonetary contribution to the marriage. Additionally, you pretty much hand him grounds for divorce – which is probably the more important consideration, depending on the other facts related to your separation and eventual divorce – which means that he could file for divorce immediately, putting your divorce in contested territory and potentially costing considerably more money. Would he? Well, that’s a question for a different day. (Besides, I don’t know him like you do.) I’m just here to talk about what could happen; whether he actually would do it or not… well, I have no idea.
Best case scenario? If you want to leave, get a signed agreement that says he acknowledges that you’re leaving and that it won’t constitute desertion. Even better? Discuss how the mortgage, utilities, and other expenses will be paid. Courts differ on these points, so if you’re curious about whether the court would hold you accountable for expenses even after you’ve vacated the marital residence, consult with an attorney.
What if he’s abusive? He won’t agree to let me leave, and I’m worried about safety.
If he’s abusive, there are a couple of different things you can do.
You can file for divorce yourself, and allege constructive desertion. Constructive desertion basically means that he made the living conditions inside the home so intolerable that you had no choice but to leave.
When you file using constructive desertion, you have to file on the day that you leave – so, needless to say, this is an important strategic consideration, and one you should be discussing with an attorney in advance of actually leaving the home.
If he’s abusive, you can also ask for a protective order. In that way, you may even be able to get exclusive possession of the home yourself, without any need to move somewhere else.
Generally speaking, the court is reluctant to move someone out of their home, but in cases of domestic violence, it does sometimes happen.
Protective orders, because they fall on the criminal side of the spectrum, are fairly difficult to get. You’ll need solid evidence of his abuse – preferably of the physical variety – and a real reason to fear for your safety and/or the safety of your children. Text messages, pictures, police reports, doctor’s notes, etc., can all be important evidence in cases like these.
If you want to include the children on the protective order as well, you’ll need evidence that your husband is a danger to them as well.
What does exclusive possession mean?
Just that – exclusive (meaning, you, solely) possession (meaning, you control it, but don’t necessarily own it). You being awarded exclusive possession doesn’t mean the house is YOURS, it just means you can live there without his interference. If it’s a marital asset, it’ll still be divided in the divorce, and your husband’s ownership interest in it will not be compromised.
Still, at this point, you can change the locks, and you can even call the police and have him arrested for tresspassing (and also for violating the protective order) if he does show up.
He’s not physically abusive, it’s just a crappy situation and I want out!
I don’t blame you. It would be a terrible way to live, especially if the fighting continues to escalate.
Again, the best way to get out is to get that agreement in place that says you can leave and it won’t constitute desertion. You can take your chances and leave anyway, but… it’s risky. Talk to an attorney to be sure you understand all the risks before you just leave, okay? Do yourself a favor and at least be sure you really get it.
Otherwise, maybe it’s just time to negotiate a separation agreement. That way, you can resolve any of the outstanding issues before you leave – which may also go a long way towards lessening the tensions. It’ll also handle the house, support, and any other issues that might have a tangential impact on your impending move.
If I leave, can I take the kids?
Never, ever, ever, NEVER leave the kids behind if you plan to go.
Also, don’t go so far away that dad can’t exercise reasonable visitation. There’s no custody order in place yet, but it’s probably not a good idea to encourage him to file an emergency petition for custody and visitation.
The kids create a whole separate level of complexity, and it’s a good idea to discuss any changes you may wish to make with an attorney BEFORE you make any big decisions that could result in unintended consequences.
If you’ve still got questions, it’s officially time to talk to an attorney. This is complicated stuff, and all sorts of consequences can arise from decisions that you’re making at this stage. The best thing you can do is be as informed as possible, and get the information while you can still manage the aftershocks. Request a copy of our divorce and custody books to get started, too, and give us a call at 757-425-5200 if you need more help.