Desertion and Abandonment as VA Grounds for Divorce

Posted on Mar 15, 2021 by Katie Carter

There’s a lot of nuance when it comes to the practice of family law, and understanding when and how to use various fault based grounds for divorce can be pretty complicated.

To put it simply, you must have grounds for divorce in Virginia (and pretty much everywhere), but those grounds can be either fault based or no fault based. A no fault divorce doesn’t necessarily mean that there is absolutely no fault (though, theoretically, it could mean that), but mostly means that, regardless of the facts involved, the parties have agreed to move forward without regard to the fault of either party. Instead, they base their grounds for divorce off of having lived separate and apart for the statutory period, which, in Virginia, is one year unless you meet the two criteria necessary to get divorced in six months.

A fault based divorce, on the other hand, is when at least one party alleges that the other party did something that contributed to the breakdown of the marriage. There are several: adultery, sodomy, buggery, cruelty, apprehension of bodily hurt, desertion, abandonment, and felony conviction. With the exception of adultery, all of the fault based grounds for divorce also carry with them the requirement that the parties must be separated for a year before the divorce can be finalized.

There are many reasons you may wish to file on fault, even if you hope not to have to carry your case all the way through to a contested trial. Though that’s a little bit outside the scope of this article, you can read more reasons for filing on fault here.

But what does it all mean? How do you know what fault based grounds mean, or how they apply, or what it takes to prove them in the Virginia courts?

In most cases, I think people get ahead of themselves when it comes to fault based divorce.

In order to FILE on fault, you don’t need to prove your grounds. You won’t need to prove desertion or abandonment until your divorce trial. To file, you just need a reasonable belief that the grounds exist.

It’s a much, much lower bar to file than to prove your grounds. Of course, you do still need to be able to pass the “red faced test”, as lawyers say. You can’t lie; and, anyway, you’re still under penalty of perjury when you sign your pleadings.

But a wider range of things is acceptable to file on than what the judge would actually use to determine whether your grounds exist at a final divorce trial. We talked the other day about cruelty and apprehension of bodily hurt, and when those grounds are triggered. Today, I want to talk about desertion and abandonment.

Like cruelty and apprehension of bodily hurt, desertion and abandonment are similar, and it’s hard to know when which grounds, specifically, are triggered, and what to allege. Like, what’s the difference? It’s a reasonable question.

Family law attorneys often allege related grounds for divorce together, and generally allege enough facts to show the court that there’s a reasonable basis in fact for making these statements. So, in a desertion case, it wouldn’t be unreasonable to use both.

Generally, though, desertion and/or abandonment are considered weak, on the fault based side of things. Unlike adultery, desertion and abandonment don’t carry potential criminal penalties, and, even though under the equitable distribution statute the judge COULD use someone’s desertion or abandonment as a negative monetary and/or nonmonetary (depending on the circumstances) contribution to the marriage as a basis for awarding a disproportionate amount of assets to one spouse over the other, this is not likely.

In general, judges think of a divorce as a business transaction, like a dissolution of a business. Judges are reluctant to punish one spouse or the other by depriving them of marital assets that both parties earned during the marriage because of their fault. Unless it’s pretty egregious – and mostly I mean shockingly egregious – it’s probably not even a consideration.

Most of the time, when desertion and/or abandonment are alleged, it’s more as a means to an end – like, to have a pendente lite hearing.

Though it COULD result in a different award of the assets, it’s probably not reasonable to expect that to happen – again, barring exceptional circumstances.

But what does it even mean? Well, I usually describe two different scenarios when I’m talking about desertion and abandonment.

In desertion, we’re usually looking at a scenario where one party just up and left the marital residence. In abandonment, we sometimes also include a financial situation – like, where a spouse suddenly started having a paycheck direct deposited to a different account, leaving the other spouse unable to pay the mortgage or take care of the kids.

Either way, it’s not super strong, as far as grounds for divorce go. But, if you need to get into court and force things to move along, it can be effective. This is also why we usually tell clients that you really shouldn’t just up and move out of the marital residence without some kind of agreement on your husband’s part – because, if he files using desertion and/or abandonment as grounds, it could make things annoying for you in the beginning.

A fault based divorce involves a bigger retainer, and often heavier up-front costs (for pendente lite hearings, discovery, and that type of thing) that can make it overwhelming, stressful, and upsetting. In general, it’s not advisable to go around giving him the opportunity to make life more difficult than it has to be. The big exception to that, of course, is in cases where domestic violence is an issue. I would never advise staying in an abusive household just because you’re afraid of giving him desertion as grounds for divorce. Your safety – and the safety of your children – has to come first! (And, also, never, ever leave the children behind if you do go!)

For more information, or to schedule a consultation with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757-425-520.