Your marriage is on the rocks. You and your wife are not getting along. She is upset with you for every little thing; you feel hopeless and alone. Finally, she tells you to get out. Leave the house, she screams, and don’t come back! That sounds great to you — a relief, really, after all you have put up with — but then you think: could I face charges of abandonment under Virginia law?
Desertion and Abandonment
You may be worried about Chapter Five of Title 20 of the Code of Virginia, even if you did not know it. That’s the chapter encouragingly titled, “Desertion and Nonsupport,” and the whole section seems intent on giving you heartburn.
More appropriate to your situation, though, is Chapter 6, § 20-91, subsection 6, because you two are clearly headed toward divorce. That subsection reads:
“Where either party has been guilty of cruelty, caused reasonable apprehension of bodily hurt, or willfully deserted or abandoned the other, such divorce may be decreed to the innocent party after a period of one year from the date of such act …”
So that is why you have that nagging feeling. Is she setting you up to charge you with abandonment so she can point to fault grounds for a divorce?
Motive for Abandonment
Abandonment is considered the trigger to divorce, one of the fault grounds under which your wife can claim to be a wholly innocent victim of your evil ways. It is a cause, not a result, of a deeply broken marriage. When framed as her request, then, it cannot be the motivating factor for the divorce.
If anything, her push to get you out could be considered constructive leaving, and put you in the position of being the wholly innocent victim (how refreshing!). Unfortunately you cannot leave such a tipping point as a he-said, she-said issue. You need documentation.
The easy and safe solution to this is to have a meeting with your family law attorney.
Ut in Ea Scribere
Forgive our rusty Latin, but ut in ea scribere roughly means “Get it in Writing,” which is good advice for anyone tangling with a potentially upset spouse. If she wants you out, consult a family law attorney and get something in writing.
This serves two purposes. It protects you from later charges of abandonment, and it sets in motion the calendar for separation (six months if you have no children; a year if you have children) leading to divorce.
Have your attorney draft a simple declaration that you agree to leave the marital home at your wife’s request, she will not charge you with abandonment in the future, and you will meet again to discuss a property settlement agreement.
If you want to push your luck, you could incorporate such an understanding into the more lengthy property settlement agreement, but she may be in no mood for that. She wants you out as fast as possible, and you likely want to exit just as quickly.
Do not leave, though, until the paperwork is signed! If you leave against the advice of your attorney, you are left to negotiate from a position of weakness. However unpleasant the days or weeks may be before the legal documents are drawn up, suffer in silence. Give her no ammunition for any further accusations.
Again, with the Latin. We are not showing off. Pendente lite is a proceeding while your separation and divorce are pending, and it sets conditions for temporary arrangements like spousal support, child support, child custody, and visitation.
While your case is pending, and even before any pendente lite hearing, you can offer to provide your spouse financial support for herself or your children (if you have them). This has the effect of preventing charges of either desertion or abandonment, because you are continuing to provide funds for their day-to-day living expenses.
My Children: Custody, Support, and Parenting Time
Agreeing to vacate the marital home can sometimes work against you when decisions are to be made by a Virginia Circuit Court judge regarding:
- Child custody
- Child support
- Parenting time and visitation
The “logic” here is that you apparently cared so little for your children that you willingly left them. You and your attorney can counter that line of argument by ensuring you stay in constant contact with your kids.
You need to do more than provide financial support if you move out. Arrange, or attempt to arrange, visits with them as often as your schedule allows.
Document texts, emails, letters and postcards. If you have telephone calls with them, or calls to your wife to arrange visitation with your kids, document those with a telephone log.
Take pictures of the times you are together. We are not suggesting “proof of life” shots with newspapers in view, but pictures showing your ongoing relationship with your children on the Virginia Beach boardwalk, at the Chuck E. Cheese on Lishelle Place, at American Indoor Karting at the Lynnhaven North shopping center; all the places you would take your kids anyway.
Stay In Touch
Just as important to staying in touch with your own children is keeping an open line of communication with your wife throughout the time you are out of the marital home. She would have to work extremely hard to prove you abandoned her if you have logs of telephone calls, emails, and text messages to enter as evidence.
Go outside your comfort zone. Go beyond her, too, to advertise to your mutual friends, your own family, and her family (especially her family) that you moved out at her request, not at your wish. The more commonplace that information becomes, the less of a case she has to later charge you with abandonment.
You may not like advertising your personal issues like that, but the cost of being private may be too high. A charge of abandonment could affect your employment, your reputation, and even the way your own family (your own children!) view you.
With a call to The Firm For Men at 757-383-9184, or by clicking to contact us online, you can get every question answered by knowledgeable, experienced Virginia family law attorneys. We fight to preserve and defend men’s rights with every case, from the simplest separation to the messiest divorce. Avoid sleepless nights; avoid the drama. Connect with us and we can help you disconnect from her.