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I want to divorce my husband. If I leave our home will I forfeit rights to his retirement and/or our property?

Fredericksburg, VA |

I've been married for 8 years. We share a home in Virginia. Would like to leave the marriage. Three questions: 1) If I leave our residence, is that considered abandonment of the marriage? 2) Will I forfeit any rights to his retirement and/or our property 3) How long do we have to be separated before I can file for divorce?

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Attorney answers 1


One of the fault grounds for divorce in Virginia is wilfull desertion or abandonment. A divorce can be granted after a year from the date of the act of desertion or abandonment. Desertion or abandonment is a breach of the matrimonial duty consisting of willfully breaking off of the marital relationship coupled with the intent to break permanently the marriage. Although leaving the marital residence may be evidence of desertion or abandonment, it is the leaving of the marital relationship rather than the home that is the crucial element. Fault grounds on the part of the other spouse, such as cruelty, may constitute constructive desertion and may justify leaving the marital residence.

Under Section 20-107.3(E)(5) of the Code of Virginia, a Virginia divorce judge can consider, along with a number of other factors, the circumstances and factors which contributed to the dissolution of the marriage, including fault grounds such as adultery, felony conviction, cruelty, desertion and abandonment, in dividing the marital property and debts in equitable distribution.

Any spouse considering leaving the marital residence in Virginia would be well advised to consult with a Virginia divorce lawyer to discuss the consequences of leaving and the spouse's other options, including entering into a separation agreement or property settlement agreement before leaving the marital residence.

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