Constructive Desertion In Virginia

Introduction

     In Virginia, there are two main types of desertion (sometimes referred to as abandonment): actual physical desertion and constructive desertion. Physical desertion is more common and refers to the actual abandonment of the marriage and marital duties with the intent to desert in the mind of the deserting spouse. Here we will focus on constructive desertion, which can appear differently from marriage to marriage.

Constructive Desertion

     Constructive desertion occurs when the spouses still remain in the marital home, but one spouse ceases their responsibilities in the marital relationship. The marital relationship is not only physical, and constructive desertion can include a spouse being emotionally absent or taking actions that cause the other spouse to abandon the marriage.

     A spouse who abandons a marital relationship may use constructive desertion as a defense. In this scenario, one spouse would have filed for divorce with a claim of physical desertion against the other spouse. The spouse that left the marital relationship would claim that the other spouse constructively deserted the marriage prior to the departing spouse leaving the marital relationship, which justifies the departure.

     Constructive desertion can also be used as a ground for filing for divorce. For example, one spouse could file for divorce claiming that the other spouse is so emotionally and/or physically unavailable, they have no choice but to file for divorce. This can manifest as a lack of sexual relations, failure of one spouse to discuss marital matters with the other spouse, or the failure of one spouse to perform their general marital duties.

We Can Help

     Our team of family law attorneys can assist you with any separation and/or divorce matter in Virginia. Please call one of our offices at (804) 325-1245 (Richmond) or (757) 941- 4298 (Williamsburg) to discuss how our experienced attorneys can be of assistance.

Special thanks to Owen Togna for editorial assistance in drafting this article.