Desertion in Virginia

In Virginia, there are both fault and no fault grounds for divorce. Many people believe, for whatever reason, that if they have fault grounds they should absolutely use them. The way the law is written, if a party has made what they deem a “negative non-monetary contribution” to the marriage, the judge may consider it when determining how all the assets and liabilities will be divided.
One of the things that lawyers are always quick to point out when they’re reading the law is that “may” is a very different thing from “shall.” The judge doesn’t have to consider the fault when it comes to dividing the assets and liabilities. Even if he does consider it, you should also keep in mind that his consideration doesn’t necessarily mean that you’ll get more and he’ll get less. In fact, very, very rarely is that the case.
Different fault based grounds carry different weight in court, too. Adultery is generally considered to be the strongest fault based ground for divorce. Desertion, on the other hand, is considered to be far weaker—and could possibly be the absolute weakest of all the fault based grounds.
Still, desertion is something that most people have heard of and have no trouble understanding, so it’s something that we get a lot of questions about. Whenever I have a consultation or an attendee at Second Saturday who is considering moving out, she wants to know all about desertion.

Is it desertion if I move out?

Technically, yes. If you’re leaving the marital home, you’re deserting—unless the two of you have signed an agreement or something specifying that you leaving does not constitute desertion, or that you’ve separated and will pursue a no fault divorce.

So, I shouldn’t leave then?

It really all depends. Desertion is, like I said earlier, probably the weakest of the fault based grounds. If you just up and left, could your husband file using desertion as his grounds? Yes, probably. Would he? Maybe. He would have to hire an attorney, and retain for a fault-based divorce (which, just as a guesstimate, would cost, on average, somewhere between $5,000-10,000). You know best whether that sounds like something he would do (or has the means to do). Unless he takes that step, though, you can move out with no repercussions.
Even so, if he DID hire an attorney, retain, and file a complaint alleging that you deserted the marriage, it would cost more for him to litigate the case and prove the desertion. Even if he could do that, the chances that the judge would find that your fault means that you deserve less of the marital property are pretty slim. The risk is really pretty low.

What if I’m in an abusive relationship?

If you’re in an abusive relationship, you shouldn’t let your fear of desertion keep you in an unsafe environment. If your safety or the safety of your children is at risk, go.
If there has been recent physical abuse and you’re scared for your safety, you might want to consider looking into a protective order. If you go to your local juvenile and domestic relations district court, they can point you in the right direction.
I’ll say it one more time: if you’re afraid that you’re in danger, go. Do what you need to do to keep yourself and your kids safe. And, if you really need help, talk to an attorney, go to a domestic violence shelter, or visit the clerk’s office at your local juvenile and domestic relations district court.

Should I take the kids with me when I go?

Yes, yes, yes. If you have kids, and you’re considering moving out of the marital home, you should always plan on taking the kids with you. I’ve heard lots of women say things like, “I didn’t want to disrupt them,” or “I figured I’d find a place to leave, and then come back and take the kids.” They may sound good, but they’re no excuse, and you run a lot of risk if you leave the house without taking the kids.
What’s the risk? Well, the main risk is that, after a divorce is filed, either you or your husband schedule a pendente lite hearing. At that time, the child’s father could say something like, “Well, when mom moved out, she didn’t take the kids. I kept them, and they’re doing great. I’ve enrolled them in counseling, signed them up for fall sports, and they’ve never been happier.” A pendente lite hearing (Latin for ‘while the litigation is pending’) is just designed to issue temporary orders; it’s not designed to handle issues of fault or blame. All the judge is trying to do is maintain the status quo, make sure the bills get paid, and keep everyone fed and safe. If, at the time you face the judge, the status quo is that the kids are living with dad, there’s a real risk that he’ll get temporary custody.
So, what’s the big deal, if it’s only temporary, right? No, wrong. Really wrong, actually. The same danger is still there. Say that, since dad was awarded primary physical custody at the pendente lite hearing, when you go in for your final divorce hearing, he says the same thing. “I have had custody all this time, and the kids are great. They’re doing well in school, and really thriving. They’re happy and well adjusted.” Then, the risk is that the judge awards permanent primary physical custody to dad—all because you left them at home when you should have taken them. Having the kids with you can go a long way towards ensuring that you’ll keep custody. (Of course, keep in mind that custody is always modifiable based on a material change in circumstances.) This is not a position you want to find yourself in.
Bottom line: if you leave, always, always, always take the kids with you.

I would go, but I don’t want to lose any rights I have regarding the house.

You won’t. It doesn’t work like that. Just because you leave the house doesn’t mean that you have any less right to it. Whatever is marital is still marital, and is subject to division in the divorce action. You don’t give up your ownership rights; you just give him possession.

Will I still have to pay the mortgage if I go?

That all depends. Every area handles this issue a differently. I know that normally in Virginia Beach, for example, whether you stay or go, you’re equally responsible for the mortgage. In Hampton, on the other hand, the party who stays in the house is generally responsible for the mortgage. Of course, this is what you could expect to happen if you went to court and sat in front of a judge, but if you reached an agreement you and your husband could agree to handle it in whatever way you wanted.
You should talk to an attorney in your jurisdiction to find out how it’s handled near you.

What if HE leaves? Can I change the locks?

All the same rules work in reverse. If he goes, that’s fine—but make sure you keep the children home with you. Likewise, if he goes, it could be construed as desertion. (Though you should consult an attorney and really think long and hard about whether it’s worth it to you to pursue it.)
The court won’t kick him out, but once he goes you’re in a great position to ask the court for exclusive possession. Usually, we do this at the pendente lite hearing. It’s the first hearing after we file for divorce, so it typically happens pretty quickly. If you ask for exclusive possession and the court grants it, you can change the locks and refuse to allow him entry. Even though this doesn’t affect his ownership in the home, it does affect whether or not he’s allowed to enter at will. For a lot of women, their husbands feeling like they’re able to just come and go as they please is a major problem; the pendente lite hearing takes care of that.
Desertion is definitely a weak fault based ground for divorce. Though any party leaving the house without prior agreement is technically deserting, it’s probably unlikely that this will hurt either of you in any real way during the case. If you’re wondering about your specific case, it’s a good idea to talk to an attorney. Give our office a call at (757) 425-5200 to schedule a one-on-one consultation with one of our experienced Virginia divorce and custody attorneys.