How to File an Actual Desertion for Divorce in Virginia

by David Carnes
Desertion may affect the contents of a child custody decree.

Desertion may affect the contents of a child custody decree.

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Willful desertion is a legal ground for divorce in Virginia. A claim of willful desertion is an assertion of fault by one spouse against the other. It must be proven by the spouse who is seeking the divorce. Desertion refers to the unilateral act of one spouse. It cannot be established if the couple agreed to separate.

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Preliminary Matters: Residency and Jurisdiction

Virginia courts have jurisdiction over a divorce if at least one spouse has resided in Virginia for a minimum of six months, regardless of whether or not the couple was married in Virginia. If requested by the court, you may prove Virginia residence with a Virginia driver's license or non-driver's ID, residential lease, voter registration card or a bank account passbook. You must file your complaint in a Virginia Circuit Court with jurisdiction over your county of residence or place of business, or that of your spouse.

The Bill of Complaint

You must file a Bill of Complaint to formally initiate the divorce process in Virginia. You must draft the complaint yourself or hire an attorney to draft it for you. Your Bill of Complaint must include the place and date of your marriage, a statement that you are both 18 years of age or older and at least one of you has resided in Virginia for six months, whether you support children, and the date you last lived together. The complaint must also allege abandonment, which means your spouse has deserted the marital residence for at least one year and has no intention of returning. Finally, the complaint should ask the court to grant a divorce and award any other remedy to which you may be entitled such as property, spousal support or child custody.

Constructive Desertion

The Bill of Complaint must allege specific facts that, if proven, establish either desertion or "constructive desertion." You may allege constructive desertion by asserting facts that, if proven, establish your spouse has abandoned his marital duties for at least one year. Such facts may include acts of cruelty, which include verbal or physical abuse, refusal to have sex or refusal to provide financial support. The facts you allege must indicate a pattern of general abandonment of marital duties; for example, refusal to have sex might not constitute constructive abandonment unless it is accompanied by other acts or omissions such as abuse or refusal to provide financial support.

Preceding the Trial

When you file your Bill of Complaint with the appropriate Virginia Circuit Court, you must pay the local filing fee. You must also complete a summons and file the summons and copy of the complaint with the local sheriff's department or a private company who will either personally deliver these documents to your spouse or send them to his last known address. Your spouse is entitled to answer your complaint. If he contests the divorce, you may both demand documentary evidence that may be in the other's possession and question each other under oath. Child custody matters are almost always handled through mediation, if possible, and the court will encourage both you and your spouse to reach a voluntary agreement on other divorce-related issues. The court will set a trial date approximately 6 to 8 months after it is requested.

Hearings

If the divorce is contested, the court appoints a Commissioner on Chancery who accepts evidence from both spouses outside the presence of the trial judge and later issues a recommendation to him. The trial judge convenes a final hearing, takes evidence from both spouses and issues a final divorce decree. If you have successfully established desertion on the part of your spouse, the commissioner or judge may give favorable consideration to your demands. If you and your spouse have reached an agreement on disputed issues, such as property division and child support, the court may accept these arrangements. However, since the court must resolve issues concerning children in accordance with the "best interests of the child," it is free to reject agreed-upon arrangements that do not comply with this standard.