Constructive Desertion as Grounds for VA Divorce

Posted on Mar 17, 2021 by Katie Carter

Grounds for divorce can be confusing. As in, what do they mean? When do you use them? What if you don’t have any?
I’ve been talking the last couple of days about different grounds of divorce, like desertion and abandonment, cruelty and apprehension of bodily hurt, and adultery (and sodomy and buggery). We – as in, family law lawyers – often lump these things together, because they kind of go together, depending on the circumstances.

Desertion and abandonment – essentially, what happens when one spouse randomly up and leaves the other without agreement, whether it’s physical or financial – can also be coupled with something called “constructive desertion” as well.

I started to touch on this at the end of my article on Monday when I said that you shouldn’t just stay in the house for fear of giving him ammunition to use against you, especially if he’s abusive. In general, my advice to women who tell me that their husbands are physically, emotionally, or sexually abusive is to get out, especially if there are children who are being impacted by the abuse.

“But, if I just up and leave, and we don’t have an agreement…haven’t I deserted?”

Well, yeah. Technically, that’s possible. But that’s why constructive desertion exists.

Constructive desertion means that your spouse made the living situation in the home so intolerable that you were forced to leave it.

There’s a catch, of course. It’s not a defense you’d allege, if you left the home and then he filed for divorce using your desertion or abandonment against you. It’s a ground for divorce on its own, and its one that you would have to file and use ON THE DAY THAT YOU LEAVE the home.

That’s tricky. That means it involves some pre-planning. But it’s a good way to protect yourself, in case you’re in a situation where you just absolutely have to leave because of the toxic environment in the home.

In general, my advice is always to talk to an attorney, one on one, about your situation, to come up with a plan designed to address the advantages and disadvantages of your situation. But, in a case like this, where you have to leave to keep yourself and your children safe, it’s a good card to be aware of and to keep in your back pocket.

Maybe you’ll choose not to use it. After all, desertion – even if he can pony up the money to retain an attorney to file using those grounds – is the weakest of the fault based grounds. It’s probably unlikely (depending on the circumstances in your case – which, obviously, I don’t know just because I’m writing this general article) to result in him getting more of the assets, or in you getting less.

Is it worth it? Should you file on constructive desertion? Well, it’s a highly individualized thing to consider, but I did want to make sure that you were aware of it, in case you did decide that was the way forward in your case.

It’s fault-based, so it does mean that you’d pay a higher retainer, and probably also have some bigger expenses at the beginning of your case, like a pendente lite hearing and/or preparing discovery. It may also increase tensions, and make settlement (at least initially) more difficult.

But it may also be the best way to protect yourself, under the circumstances, from a husband who is determined to do whatever he can to make the situation more difficult and stressful for you. In dealing with husbands, especially narcissists, I’ve found that this kind of action is helpful, because it preempts anything he might choose to do, and sort of puts him in a corner.

Sometimes, taking that leap yourself (as opposed to waiting for him to take it) is freeing and empowering. Regardless, though, it’s a strategic decision that should be made carefully, by weighing advantages and disadvantages, and after having consulted with a professional about the unique factors involved in your particular case.

Divorce is never a “one size fits all” proposition. There are considerations that apply across the board, but there are factors that are divergent, too. Your risk and comfortability with the process and the stakes involved are important to consider. Your husband, and the attorney he hires, matters too – and, of course, that’s entirely outside of your control. Not to mention the facts involved in the case can vary dramatically, too.

The best course of action is to ask questions, whether you’re now at the stage that you’re doing independent research, or whether you’re ready to just talk to someone. For more information, consider requesting a copy of our divorce book, attending one of our online monthly divorce seminars, or give our office a call at 757-425-5200 to schedule a consultation.