If your wife wants a divorce and you do too, move out. This will speed up the process and make both your lives simpler. That’s the short answer, of course, but it’s really not that easy. Various factors can greatly complicate this life-altering decision—everything from property to pets to kids can make this jarring moment a challenge to your wallet, heart and head.
Gimme the Short Answer!
The Code of Virginia provides an expedited method for divorce based on one of you moving out of the family home. Title 20, Chapter 6, § 20-91 gives us the grounds for divorce from bond of matrimony. Subsection (9) (a) states [sort of] plainly:
“On the application of either party if and when the husband and wife have lived separate and apart without any cohabitation and without interruption for one year. In any case where the parties have entered into a separation agreement and there are no minor children either born of the parties, born of either party and adopted by the other or adopted by both parties, a divorce may be decreed on application if and when the husband and wife have lived separately and apart without cohabitation and without interruption for six months.”
This, in much plainer language, means you can live apart for a year and that is grounds for divorce. If you have no kids, six months will do it.
Be careful, though, because “cohabitation” means many things:
- Accepting a cup of coffee from her
- Changing the oil on her Chevy
- Microwaving her breakfast burrito
- Sex
Legally you must do nothing for her during that six months or year. She can overlook that weekend romance you two fell into three months into the separation, but her lawyer will very much want to bring it up. That escapade resets the calendar and you have to wait another six months or year.
Weakening Your Visitation & Custody Rights
Kids in the mix make life significantly more complicated. When you move out, you may have to explain to very little children why Mommy and Daddy are separating. In most cases, before the divorce, the children will remain in the family home, which means they will remain with your soon-to-be ex-wife, even if you file for custody during proceedings.
The far greater issue with children is custody: moving out could weaken your visitation and custody legal argument if you do not work out details with your spouse before leaving. Where you go matters, too: try to move within the children’s school district, so as not to disrupt their academic year with a change of schools.
Marital Desertion? Moi?
Virginia’s laws justify divorce if either of you “willfully deserted or abandoned the other,” according to Section 20-91, subsection (6). If she tells you she wants you out and you move out, you have neither willfully deserted nor abandoned her. You tried to please her, to do her bidding. That is not grounds for divorce. If she announces her intention to divorce you, try to get something in writing from her saying she wants you out, because if you leave after her pronouncement but without evidence of her desire, she can actually use your leaving as the fault grounds.
Does Moving Out Void Your Marital Property Rights?
You may worry that moving out somehow voids your rights to your property. It does not. If the house, ATV, RV and SUV are owned by you both (or acquired during your marriage), they should be divided up in a property settlement agreement. You can physically be anywhere and still own your things. Take the Massanutten Resort timeshare you both own, when you live in Virginia Beach. Simply because you are not camped out at the resort pool full-time does not forfeit your rights to your share.
Are You Still Responsible for Your House After Separating?
You probably have forgotten what expenses you will face with a move. You probably cannot afford to buy yet another house, so you will rent. Rent requires a one-month security deposit—which could be substantial—and monthly payments on top of whatever you must pay on the first home’s mortgage. Just because she files for divorce and you move out, you still have to pay for the costs for running the house she (and perhaps your children) still live in.
Moving Out of State During a Divorce
If you do move out of the family home, should you move out of state? Probably not, but only your lawyer can properly advise you. Virginia divorce laws apply to Virginia residents, which means your case will be stronger if you stay in state. The Code of Virginia says,
“No suit for annulling a marriage or for divorce shall be maintainable, unless one of the parties was at the time of the filing of the suit and had been for at least six months preceding the filing of the suit an actual bona fide resident and domiciliary of this Commonwealth, nor shall any suit for affirming a marriage be maintainable, unless one of the parties be domiciled in, and is and has been an actual bona fide resident of this Commonwealth at the time of filing such suit.”
After she hires an attorney, the attorney will file for the divorce in the county or city in which you both last lived together, like Virginia Beach, even if you moved to Goose Pimple Junction. Another option is to file in the Virginia county or city where you, the defendant, now reside if you did move out. If you did, in fact, move to Goose Pimple Junction (yes, it’s a real town in Virginia!), her attorney will have a hard time finding a place to file the papers among its 326 inhabitants. If you move out of state, her attorney will file where she lives.
Talk to Your Attorney Before You Make Your Move
Moving out is expensive, but may be the fastest route to a clean divorce. And of course, it may give both of you time to separate heart from head and reach rational decisions about property, children, spousal support and more. To get advice on your best course of action before separating, call The Firm for Men‘s Virginia Beach office today at 757-383-9184 to schedule a consultation.
