Virginia Code § 20-91 provides for divorce on either fault-based grounds or no-fault grounds in Virginia. The grounds for divorce listed there include, among others, both (a) the fault-based ground of willful desertion or abandonment, after one year and (b) the no-fault ground of living separate and apart without any cohabitation and without interruption for one year. The separation period for a no-fault divorce is shortened to six months where the parties have entered into a separation agreement and have no minor children.
All of which leads to this common question: how does one live “separate and apart” to qualify for a no-fault divorce, without being found guilty of willful desertion or abandonment?
Virginia courts distinguish desertion from mere separation by looking at the specific behavior of the parties. Courts have consistently found that one party moving out of the marital bedroom or even the marital residence does not by itself show that a desertion has occurred. Instead, a finding of desertion requires that one party has ceased performing their marital duties, which can include but are not limited to providing financial support or contributing to marital bills or debts, and providing emotional or physical support.
Separation, as distinguished from desertion, is separating from your spouse, either in the home or outside, while still operating under the rules and standards of the marriage, such as division of the marital obligations and duties. Usually, a separation and the terms of the separation are discussed and agreed, whereas a desertion is more of a unilateral action by one party, leaving the other party saddled with all the marital duties and obligations.
Ultimately, there is a thin line between desertion and separation under Virginia law. It is therefore important to discuss the specifics of your case with an experienced family law attorney before leaving your spouse.
Livesay & Myers, P.C. has a team of experienced family lawyers across offices in Fairfax, Ashburn, Manassas and Fredericksburg, representing clients across Northern Virginia. Contact us to schedule a consultation today.