Not everyone has parents to go home to, but for the lucky few the siren call can be strong. When things start to go badly in your marriage, it’s tempting to want to go back to a place of safety and security. But can you just … leave? Is it that simple?
Well, hold on. Let’s talk about this.
Virginia allows divorce on fault grounds and no fault grounds. Desertion and abandonment are fault based grounds in Virginia.
Technically, in Virginia, desertion and abandonment are fault based grounds for divorce. That means that neither of you is supposed to just abandon the marriage or each other, especially not without some kind of written agreement.
Let me say from the outset that, no matter what, safety has to come first. If you are experiencing domestic violence or abuse or coercive control, you may want to leave first and ask questions later. Many things can be resolved relatively quickly and easily anyway, so it doesn’t make sense to just stay because you’re worried about being charged with desertion or abandonment. And, as a side note, if you wanted to take a (somewhat aggressive but still protective) step, you could file for constructive desertion on the day that you leave.
As far as fault based grounds go, desertion and abandonment are relatively weak, meaning that I think it is probably unlikely that you will either lose parenting time and/or division of the assets because of it. What alleging desertion and/or abandonment would do, though – assuming that your soon-to-be ex husband is willing and financially able to take that step – is force your case into court on a speedier timeline.
There are reasons you might want to file for a fault based divorce or why you might not mind if your soon-to-be ex husband takes that step. For one thing, if you don’t know the extent of the assets and liabilities, well, it would help in the sense that then we can conduct formal discovery to figure out what’s there to divide. For another, it takes two people to negotiate an agreement and, if he’s telling you that he’s unwilling to sign, we may have very little choice in the matter. For a third thing, if you have been cut off from access to the marital money, often one of the best and quickest routes to getting child and spousal support in place is to file for divorce and schedule a pendente lite hearing.
Why you might NOT like it is because it makes a case – at least at the outset – considerably more expensive and, sometimes, more contentious.
How can I protect myself from him alleging that I’ve deserted or abandoned the marriage?
The best way to protect yourself from a claim of desertion and/or abandonment is to have a signed agreement that states that you are allowed to move out and that it will not constitute abandonment. I can count on one hand the number of times I’ve had such an agreement, though.
You could also let him know – in writing – that you’ve gone to stay with your parents for an undetermined period, but that you intend to return. “Hey, honey,” you might say. “Things have been really tense in the house, so I’m going to go stay with my parents for a few days. See you soon.”
It’s not perfect, but it at least helps establish an intention that this separation – though not necessarily a legal separation at this point – is not permanent. You’re not formally deserting or abandoning, just staying with mom and dad for a little while. “A few days” can mean a lot of different things to a lot of different people.
Geography matters, too. Where do mom and dad live? That could impact the reasonableness of this plan.
Hopefully mom and dad are right down the street or, at least, not too far away. If you and your soon-to-be ex husband share children in common, it’s not going to be all that feasible to go hours and hours away, especially if they’re in school. Logistically, it would just be too difficult and, in any case, it’s not going to look great to have them that far away from dad for a long period of time.
And, while I know at this point we’re talking about a temporary move because a marriage is failing and not necessarily a plan of permanent relocation, it’s important to point out that relocation is actually really difficult. If that’s part of your plan, you should talk to an attorney sooner rather than later – and go in with the assumption that it may not be possible at all.
Mostly, I’m assuming that mom and dad live close. Otherwise, this analysis gets tricky a lot faster. It’s not possible to, say, go to California for a few days – and he would be reasonable to ask for information about your return ticket. Booking a one way ticket, especially if you’re taking the kids, is alarming behavior. He might even be tempted to see an attorney himself and file for custody and/or visitation, maybe even on an emergency basis. Either way, it ups the ante, makes things more difficult and more contentious, and potentially puts you in a difficult position.
If mom and dad’s house means that you can’t keep up the kids regularly scheduled routines, then maybe it’s better to come up with an alternate plan.
I understand. When the going gets tough, you want to go home. Having a stable, secure home to go back to is one of the greatest privileges you could know as an adult, and it’s completely reasonable that you’d default to this protective position. In terms of your divorce or custody case, though, it may not be the smartest move.
While I understand that you want to take steps – and that seeing an attorney may seem intimidating or expensive – it’s always a good idea to talk through any steps that you’re considering taking beforehand, just so that you can make sure that you don’t make things any more difficult than they have to be.
Sharing kids in common makes things tricky, and you don’t want to seem like you’re trying to relocate with them or like you’re unreasonably withholding access from them to dad – both of which could backfire.
For more information, to schedule a consultation, or to learn more about relocation, give us a call at 757-425-5200 or visit our website at hoflaw.com.