This is a good question and one that we hear all the time. As a lawyer, I am of course, obliged to always give the first lawyer answer: and that is, “it depends!” Sorry about that, but it’s so often true.
A successful accusation of abandonment, or desertion, in a Virginia divorce, depends on several factors, but is mostly centered on one’s intent, or why the leaving happened. When one spouse leaves the other unjustifiably and willingly with the intent to end their marriage with that action, the leaving might be considered abandonment— someone left without notice perhaps, in an effort to cause a divorce.
Abandonment to cause a Divorce
My description of this type of situation with our clients is that perhaps one spouse comes home one day, or maybe back from a military deployment, and finds the house almost empty with no spouse, kids or dogs present. This is good evidence that the other spouse wants a divorce—and this action was meant to harshly make that happen! This is likely abandonment.
On the other hand, if you and your spouse are separated, or separating, and you then leave the house, you cannot be charged with desertion as grounds for a divorce. You are not separating in order to cause a divorce, that’s already happening for other reasons. You are separating to get a divorce started—which is required by law in Virginia. This leaving is after the fact, so to speak, and this is likely not abandonment.
Of course, there are always exceptions…
There are situations in which your legal counsel might actually encourage or advise you to leave the marital home—certainly in situations of domestic abuse, or where children are neglected or reasonably in some degree of danger.
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