A bedrock of Virginia law is intent. What someone intends is as important as what someone does. It is dressed up with a Latin phrase: mens rea. Mens rea refers to the defendant’s state of mind. It describes the mental condition that the prosecution must prove a defendant had when committing a crime. Desertion in Virginia law very much hinges on mens rea.

Code of Virginia, Title 20

Virginia operates from roughly equal parts case law and legal code. Case law is determined in trials, when a judge rules this way or that. Legal code is, well, codified in the aptly named Code of Virginia, where Title 20 provides all the legalese for family law. Title 20 has seven current chapters, and each chapter carves out a different area of family law.

Let’s make this a fun game and see if you can figure out which one of these chapters deals with desertion in divorce:

  • Chapter 4.1 Support
  • Chapter 5 Desertion and Nonsupport
  • Chapter 5.1 Civil Proceedings to Compel Support

Now, take your time, but if you said Chapter 4.1 or 5.1, have another look. An entire chapter of Virginia law is dedicated to desertion in a marriage.

What Is the Definition of Desertion?

A definition of desertion in marriage appears in a 1993 Virginia case, Barnes v. Barnes, 428 SE 2d 294 – Va: Court of Appeals 1993:

  • Desertion occurs when one spouse breaks off marital cohabitation with the intent to remain apart permanently, without the consent and against the will of the other spouse.

Notice the ruling includes intent, or mens rea. This makes desertion in marriage legally different from, say, a spouse posted to a distant military base or an over-the-road trucker who is home only once every eight weeks.

Brace Yourself

We are about to quote one sentence from Virginia’s Code. Yes, this is one sentence, 233 words. Brace yourself:

  • Any spouse who without cause deserts or willfully neglects or refuses or fails to provide for the support and maintenance of his or her spouse, and any parent who deserts or willfully neglects or refuses or fails to provide for the support and maintenance of his or her child under the age of eighteen years of age, or child of whatever age who is crippled or otherwise incapacitated from earning a living, the spouse, child or children being then and there in necessitous circumstances, shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not exceeding $500, or confinement in jail not exceeding twelve months, or both, or on work release employment as provided in § 53.1-131 for a period of not less than ninety days nor more than twelve months; or in lieu of the fine or confinement being imposed upon conviction by the court or by verdict of a jury he or she may be required by the court to suffer a forfeiture of an amount not exceeding the sum of $1,000 and the fine or forfeiture may be directed by the court to be paid in whole or in part to the spouse, or to the guardian, curator, custodian or trustee of the minor child or children, or to some discreet person or responsible organization designated by the court to receive it.

You still awake? Notice the consequences of desertion:

  • A fine not exceeding $500
  • Confinement in jail not exceeding one year
  • A fine and jail
  • Work release for not less than 90 days or more than a year
  • Forfeiture of up to $1,000 rather than the fine or jail, such forfeiture being turned over to the spouse or children’s guardian

Desertion in a marriage also constitutes one of the fault grounds for divorce.

Fault Grounds for Divorce in Virginia

Please trust us when we say you do not want to be found at fault in divorce. To be at fault means you committed one of these little legal gems under Virginia Code § 20-91:

  • Adultery
  • Sodomy or buggery committed outside the marriage
  • Felony conviction
  • Cruelty
  • Causing reasonable apprehension of bodily hurt
  • Willfully deserted or abandoned the other

The mens rea appears in “willfully deserted,” in which the deserting spouse intentionally left the marriage.

Lesson Learned

Let’s review what we have learned today. In divorce and desertion, your intent is as important as your actions (mens rea).

Desertion in divorce is something to avoid. Not only will you face criminal consequences, you hand your spouse a very easily won divorce suit. You also have weak standing when negotiating a property settlement. Listen to your divorce lawyer’s advice. Avoid having to defend against a charge of desertion.

Contact our Virginia contested divorce lawyers today at The Firm For Men, or telephone our Virginia Beach office at (757) 383-9184. We focus on helping Virginia’s men in all aspects of family law, including divorce based on fault grounds. We can help you through separation, divorce, and much more.