Is your monthly rent above or below $1,257? The U.S. Census bureau reports1 that Virginia’s median gross residential rent from 2016 through 2020 was $1,257, an odd number. That means sharing the costs of a lease goes down to the dimes. You and your wife each have to kick in $628.50, but by having each of you pay and each of your names on the lease, you get to stay.
Leasing in Virginia
You and your wife (or soon-to-be-ex-wife) are fortunate in leasing your marital home, since you need not worry about equitably splitting it during property division. Neither of you owns the place. In most Virginia apartment complexes, after the one-year lease expires you and your wife can continue in a month-to-month tenancy.
Know your rental terms. Reread your lease. Does it have both your names on it? Is it a year-to-year lease, a one-year lease, or a month-to-month lease? You may not understand every word, but you should be able to extract enough information to feel comfortable staying in the rental. You can always take your lease to your family law attorney for clarification, too. In general:
- If both your names appear on the lease, your wife cannot kick you out of a rental unit. You both share the same legal contract with the landlord to remain in the rental as long as the entire rent is paid. Avoid the “I paid my half” tactic; it is infantile and not legally defensible. Your lease agreement specifies a monthly rent, so sending the landlord a check for half the amount (your share) may get you and your wife evicted.
- If only your name is on the lease, you can require your wife to leave, since she is not legally protected by the contract (rental agreement).
- If only her name is on the lease, you may be the one who needs to leave. Don’t sweat it; living together in a cramped rental unit while going through separation and divorce can be emotionally exhausting.
Breaking a Lease in Virginia
If being tenants is untenable — if remaining together in the rental is not going to work — you can break most Virginia month-to-month rental agreements by providing 30 days’ notice to the other party in the lease (your landlord).
Similarly, under Virginia Code § 55.1-1410 you can break a year-to-year lease on three months’ notice. Read and reread your lease to be sure you follow the delineated procedures on breaking any lease.
Send a written notice of termination by registered mail (that gives you proof of receipt) and pay close attention to the dates. Any possible refund of your security deposit depends partly on you breaking the lease as the rental agreement specifies.
Clean Up and Clean Out
If you are concerned about getting your security deposit back, make sure you are the last one to vacate the rental. Do not give your wife a chance to trash out the place, since you both are legally entitled to half the security deposit refund.
No matter how frustrated, tired, or angry you are, leave your rental in good shape. Stay the extra hour to vacuum the carpets and clean the toilets. Take video or photographs of the way you left the place, too. You need a solid record as a renter to get into your next rental.
We have firmly established that your wife cannot kick you out of your apartment or rental if both your names are on the lease. She can, however, make your life a living hell while you remain. This is constructive desertion, a fault ground for divorce in Virginia.
She refuses to leave the rental, but she also has left the marriage in all meaningful ways: sexually, financially, and emotionally. Under Virginia Code § 20-91, divorce can be decreed fairly quickly:
“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” (emphasis added)
You and your trusted family law attorney will need to prove this desertion as a fault ground, but by keeping a careful record of her behaviors, actions, and expenditures, you probably will have little difficulty making your case.
Constructive desertion is not a tactic to implement yourself. Emerge from a separation and divorce with dignity and pride intact. Follow your divorce lawyer’s advice on dealing with your wife and your lease.
At The Firm For Men we have experienced attorneys ready to handle your separation, divorce, or custody concern. We can answer questions about equitable property division, real estate, and, yes, sometimes even leases. Contact us today or telephone us in Virginia Beach at (757) 383-9184. No matter what your wife does, we will do our best to make sure you always have a roof over your head!