In a divorce, what counts as desertion or abandonment? Are they the same thing?

While desertion and abandonment are usually used interchangeably in divorce cases, there is actually a distinction between the two.

“Desertion” is the breach of the duties stemming from being married.  First, there must be a break from living together as spouses (“cohabitation”).  Second, there must be intent to desert in the mind of the deserter.  You must have both to establish desertion.  Desertion does not depend on who actually leaves the family home.  Desertion can be “constructive,” which is where one spouse commits cruelty toward the other spouse, resulting in the innocent spouse leaving the marital residence.  The innocent spouse didn’t desert the marriage by leaving, he/she left due to the bad acts of the other spouse. 

“Abandonment” is when there is evidence to show that “ a person has left his or her spouse, or his or her child or children in a destitute or necessitous circumstances, or has contributed nothing to their support for a period of thirty days prior or subsequent either or both to his or her departure…” 

Virginia Code 20-95

Virginia Code 20-81

 

Kellam T. Parks
Managing Member of Parks Zeigler, PLLC