Abandonment is grounds for divorce in most states, Virginia included. Abandonment or desertion is considered a traditional fault-based divorce, while constructive abandonment is a no-fault divorce. Other factors involved include the length of time since abandonment, whether or not there was contact between the married parties and the nature of that contact, and whether or not the married parties have children together. There are two types of divorce in Virginia -- a divorce from bed and board (commonly called a legal separation) and a divorce from matrimony.
Actual Abandonment or Desertion
If a spouse voluntarily leaves without the intention to return or to continue the relationship, it is actual desertion. If your spouse packs up all of his or her things and leaves, moving into a new home, this is abandonment. In a court a spouse must prove the willful desire or intent to desert as well as the intent to end the marital relationship. If a spouse leaves due to cruelty inflicted by the other spouse, this is not considered actual abandonment.
Divorce due to abandonment is initially granted as a divorce from bed and board.
Constructive Abandonment
Constructive abandonment can be grounds for divorce from bed and board even if neither spouse leaves the shared home. If a spouse's behavior is such that it endangers the mental or physical health of the other, or such that it makes continuing the relationship unbearable without harm to the other party, it can be grounds for divorce from bed and board. Withholding of sex or the destruction of the home life can constitute desertion of the marriage, even if one spouse never physically leaves the other.
Divorce from Bed and Board
If there are grounds for abandonment, either constructive or actual, you can file for divorce from bed and board. This is the formal term for a legal separation where neither party may remarry. Each spouse's individual property is protected after a divorce from bed and board, and there is no minimum length of time required after abandonment before filing. Divorce from bed and board functions much like an actual divorce in allowing for spousal and child support.
Filing for divorce from bed and board is the first step to getting a full divorce after desertion. The Virginia court system counts the time after divorce from bed and board is granted toward the minimum time limits on divorce from matrimony after separation.
Divorce from Matrimony
In order to get a divorce from matrimony due to abandonment or desertion in Virginia, you must first be granted a divorce from bed and board. The divorce from bed and board can then be rolled into a divorce from matrimony if requested. If there are no minor children involved and the couple has been living separately for at least six months, a divorce from matrimony may be granted by the court. If there are children involved, the court may require mediation, and the minimum time of separation before divorce is a year. Six months or one year, whichever is applicable, from the date of separation, the court may grant a final decree of divorce from matrimony.
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