In Virginia, desertion or abandonment is a fault ground for divorce. If, however, the spouse is justified in leaving the marital home (for example, if there is proof of adultery by the remaining spouse), the desertion will not establish adequate grounds for divorce.
There are two elements that must be proved in order to constitute desertion in Virginia: the willful desire or intent to desert and the cutting off of the marital relationship. In Virginia, desertion requires not only a willful separation by one spouse but also an intent carried through the statutory period of one year not to return to the unoffending spouse. Previously, insanity of the deserting party was a valid defense to a desertion-based divorce, thus precluding divorce from such persons. Current Virginia law, however, clearly states that insanity is no longer a defense to desertion-based divorce proceedings.
There are two types of desertion: actual desertion and constructive desertion. Actual desertion occurs when one spouse voluntarily leaves the familial residence with no plans to resume living there. Constructive desertion is a judicially-created doctrine, recognized in a handful of Virginia cases, which is defined as one spouse leaving the relationship without leaving the physical residence itself. Such a scenario might arise from an intolerable or unendurable living situation. Because of its abstract nature, it is highly recommended that an attorney be consulted prior to bringing suit on the basis of constructive desertion.
Finally, the desertion may be ended only if the deserting spouse returns to the familial residence and resumes cohabitation with the consent of the other spouse and the intent to resume cohabitation.