In these esteemed pages we have discussed books, movies, law, history, Latin, food, and Dinosaurland. Yet, to our memory, we have not touched upon one of the foundation stones of our modern civilization: Star Trek. Today, we present the legal equivalent of Star Trek’s Corbomite Maneuver1 (Never heard of it? Hang in there!). Today, we address constructive desertion in Virginia divorce, a Kirkian strategy if ever there was one, for getting out of an impossible situation.
Stubborn Spouse, Meet Corbomite
Your wife is a total pain. She refuses to lift a finger, does nothing to help around the house, is cold and indifferent to you emotionally and sexually, ignores your children (if you are so blessed to have children), but refuses to leave your marital home.
Perhaps she is beyond a pain; perhaps she is even cruel to you, verbally or physically. Nothing that leaves bruises or scars, but still …
You think you are stuck. She has not committed adultery. She is not abusing substances or your kids. You have hard time putting a finger on exactly what she is doing that would be legally so horrible that it means your marriage is over. You feel completely trapped.
You are not trapped.
Star Trek’s Corbomite Maneuver, dating all the way back to 1966 (or to future stardate 1512.2) provides a handy escape from a doomed situation. What would Captain Kirk do in your situation?
Kirk has Uruha radio the folks back home that the trapped ship will set off the highly explosive (and non-existent) Corbomite and blow up everything in the space neighborhood. Sure enough, the looming enemy backs off. Kirk has brilliantly slipped away from an impossible trap.
The legal equivalent of squeezing out of an impossible marriage situation is constructive desertion. Legally, you are not abandoning your kids; you are not even abandoning the marriage. It is your wife who, without leaving the house, has abandoned you.
Your spouse has made the marriage so hostile, so intolerable, and so threatening, your only choice is to leave, says your attorney to the judge. You had to leave the marriage for your own good and, possibly, the good of your kids (if you have any).
Who Would Be Charged with Constructive Desertion?
In some situations (employment and marriage), leaving the predicament is actually better for you than sticking around to endure more abuse and suffering. Yes, you walked out; vamoosed; hightailed it; left; skipped or skedaddled.
You and your lawyer will argue, though, that your wife gave you no choice. In a bid to save yourself and your children, you deserted the marital home because your wife made your marriage a living hell.
Rather than destructively quit, you constructively dogged it to salvage yourself and (if you have them) your children.
She is left with the marital home and nothing else. She is charged with desertion; you are not.
Proving Constructive Desertion
Say you finally have had enough of the dirty clothes, unmade bed, sexless marriage, and lack of meals. Your ears are full to the brim of her verbal tirades and harangues. You gather your courage and evidence, a suitcase of clothes, and move out. If you have children, you take them with you and find a relative to stay with while you sort things out and get a lawyer.
Your attorney will petition the court for divorce based on the fault ground of desertion. You did not desert the marriage — she did, which you and your attorney can prove through evidence you gathered before you left:
- Photographs of the neglected home
- School records of your children’s dropping grades or your wife’s missed appointments with guidance counselors and teachers
- Bank records showing a pattern in which she no longer purchased groceries, picked up dry cleaning, bought gifts, or performed other basic financial transactions in support of the family
- Your deposition that she has left the marital bed
- Police records, if you had to call for law enforcement when she became abusive
Code of Virginia § 20-81 requires that your wife display this neglect for only 30 days prior to your leaving. Additionally, Virginia Code § 20-61 makes such abandonment (by her) a punishable misdemeanor, meaning your wife has committed a criminal act.
With these legal protections on your side, you and your attorney can proceed to divorce under § 20-91(A)(6):
“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, yes, you wait a year, but during that year, you are rid of her, the calendar is counting down, and a year later, you secure your divorce. Throughout the year, your attorney proceeds with filings so that, after the year is up, you are free!
Wait, wait! Before you go, please call 757-383-9184 to speak to a practicing Virginia divorce attorney for men at The Firm For Men, or contact us online. If you live long and prosper in the Virginia Beach area, you can also stop by our offices. Our ongoing mission is to boldly go where our clients need us. No? Enough with the Star Trek references?