Is there a disadvantage to leaving the marital home in Virginia?

Posted on Jun 9, 2021 by Katie Carter

It’s always stressful when a marriage breaks down, especially if one party is surprised to find that the other feels like it’s really, truly over.

In almost every case, there’s a period when tensions are at their highest, and everyone feels unbalanced. Though it is probably safe to say that most people live separate under the same roof for a portion of their period of separation, that absolutely does not mean its easy.

In fact, one of the things that I think is HARDEST about the process is changing the way you think about your spouse. It’s a little alarming how quickly it goes from an “us” mentality versus a “me” mentality. That’s not a dig; in fact, I think you have to think that way. It’s healthy to think that way. The two of you are no longer members of the same team; you’re opposing parties.


NOT thinking that way would, I think, put you in jeopardy of accepting less than you deserve, of being too kind, and of not looking out for your own future as well as you could otherwise do. That’s not what I’d advise for anyone.

My general advice is always the same, and it’s always this:

Take the time to gather the information you need to make the choices you need to make to protect yourself, your children, and your future.

You’re already doing some of that – you’re here, aren’t you? And that’s great. Asking questions is a good place to start, and it’ll help you make sure that you’re doing what you need to do to meet your own goals for yourself.

One of the first places people start to ask questions is about the marital home. If you own your own home, it represents a significant investment. For a lot of families, the home is one of the biggest assets there is, so it’s normal to wonder what might happen to it.

Can I leave the home? We own it.

It’s a complicated question, and there are a lot of related issues.

Technically, yes, you can leave. No one – least of all the court – is going to step in and physically hold you in place. Likewise, no one is going to force you (or he) out (absent, say, domestic violence) if you want to stay. It’s your home, and you’re both entitled to be there, no matter what’s gone down in the marriage.

Interest in Home in Divorce

If you do leave, it does not impact your ownership interest in the home. Property is classified as marital, separate, or hybrid, depending on the source of the money used to pay for it. If it’s a marital asset, it’ll still be marital even if you move out.

Separate Increase in Equity from Post Separation Mortgage Payments

If, though, you move out and don’t continue to pay for the home – mortgage, improvements – then you may find that your interest is diminished. Post separation money is separate, so if he ends up paying for it all on his own, you may have to give him credit for the accrued value from the point of separation (or the point that you left, whenever you stopped paying) up until the house was either sold or refinanced.

Of course, that’s not necessarily a dealbreaker, and it doesn’t necessarily mean you should continue to pay. (Unless, of course, there’s a court order that requires you to pay, in which case you should absolutely follow the court order to the letter.) Consider that houses with a mortgage on them often have a huge amount of the monthly mortgage payment going towards interest. Depending on how new or old your mortgage is, more or less may be going to interest – and not to the increase of equity. It’s the equity that’s divided in the divorce, so that’s what’s relevant.

Anyway, just saying – it’s worth considering, worth doing the math, and worth having an open, honest conversation with your attorney about your options before making any decisions. (Good general advice that can span lots of different areas, by the way.)

Moving Out and Desertion and/or Abandonment as Grounds for Fault Based Divorce

Now, just because your entitlement to the home isn’t impacted by leaving the marital residence, that doesn’t mean it’s a good idea. Technically, up and leaving the home could be considered grounds for divorce. Without an agreement (wherein both you and he acknowledge that one or the other of you is going to leave the marital residence, and that it will not constitute desertion and/or abandonment) in place prior to leaving the home, you run the risk that your spouse will file for divorce using desertion or abandonment as his grounds.

Does it matter? Yes. No. Maybe? It really depends. Desertion and abandonment are generally considered fairly weak, in terms of fault based grounds for divorce, but that doesn’t mean that there’s no impact to you. It’s expensive to hire an attorney to defend against a fault based divorce, for one thing, and you may find yourself quickly in a courtroom for a pendente lite hearing. It’s worth discussing how this could ultimately impact your case, depending on your unique circumstances – but it’s a risk you take when you leave.

Moving Out and Domestic Violence

One huge, major caveat I would offer here is that, if you’re the victim of domestic violence (or if your children are), you should not let fear of desertion or abandonment keep you in an unsafe environment.

Consider a protective order, if necessary, too, but absolutely do not stay in an unsafe situation because of the risks I’ve disclosed here.
In general, to summarize, no, there’s not a huge disadvantage to leaving the marital residence in terms of your entitlement to or ownership of the house. There may be consequences, though, and you should be familiar with them and how they might impact your case.

But what happens when you live in a rented home?

Can I leave the home? We rent it.

In a situation where you rent, it’s not a question of ownership of or entitlement to the residence. I’m assuming that if you wanted to stay in the apartment or home, you wouldn’t be planning on moving out in the first place, too.

The main concern here is whether he will satisfy the lease. If you’ve signed it, you’re a party to a contract – and the landlord can file suit and hold both you and your husband accountable for unpaid rent, damages, or whatever else the lease allows. That’s the main consideration.

Leaving could still be construed as a desertion or abandonment, and could give rise to your husband filing for a fault based divorce using those grounds – so, again that’s something worth being aware of, but it’s also not a justification for remaining in an unstable or unsafe household. If you or your children are victims of domestic violence, it’s better to be safe than sorry. Look into a protective order, too.

It’s always a good idea to discuss with an attorney what your options are, what the net cost/benefit to you would be, and what challenges you might face. I’m not saying that you shouldn’t take a course of action that has a potential downside, just that you shouldn’t take a course of action without at least being aware of the downsides you might face.

Do what you will, but do it with knowledge. A good general motto, but one that applies especially in a divorce case.

For more information, to schedule a consultation, or to request a copy of our divorce book for Virginia women, give us a call at 757-425-5200.