Desertion and Divorce in Virginia

Desertion, also called abandonment, is a commonly used ground for divorce in the state of Virginia. This webpage provides an overview of desertion in Virginia divorce, its legal implications, and the process involved.

Understanding Desertion in Virginia Divorce

Definition of Desertion

Desertion in the context of divorce refers to a a spouse breaking off marital cohabitation with the intention that cohabitation remain broken off forever. 

Fault-Based Divorce

Desertion is a legal ground for divorce in Virginia.  To prove desertion requires the following: 

• The desertion must be corroborated by some evidence other than the admission of the spouse who committed the desertion 
• The other spouse must not have consented to the desertion (see below under defenses
• There must not have been recrimination (see below under defenses)

Legal Implications of Adultery in Virginia Divorce

Effect on Property Division

While Virginia is an equitable distribution state, meaning that marital property is divided fairly but not necessarily equally, a spouse’s desertion may be taken into consideration when determining how assets and debts should be divided. Courts especially look at the economic effect the desertion had on the other spouse.   

Effect on Spousal Support/Alimony

Virginia law requires that, in determining whether a spouse should receive spousal support, courts must consider the causes of the dissolution of the marriage.  If desertion is what caused the dissolution of the marriage, then the court will factor the desertion into its spousal support decision.     

Effect on Child Custody and Visitation

In child custody and visitation matters, the court’s primary concern is the best interests of the child. Desertion, by itself, is generally not a determining factor in custody decisions. However, if the desertion had a detrimental effect on the child or disrupts the child’s well-being, it could be considered by the court when making custody determinations.  

Defenses Against Desertion

Virginia law provides sevderal defenses to a charge of desertion.  These include:

• Legitimate Reason to Leave.  If the spouse who leaves the residence has a legitimate reason to leave – such as physical abuse or threats – he or she should not be guilty of desertion.   
• Consent.  If, prior to a spouse leaving the home, the spouses agree to separate and divorce, neither spouse will be guilty of desertion.
• Recrimination.  If both spouses are guilty of fault (adultery, desertion, cruelty) then the faults “cancel each other out.” 

Skill and an intimate knowledge of the law is required to establish these defenses.  One of our skilled divorce lawyers can help.