By Sharie Reyes Albers, Partner, Virginia Family Law Center
Desertion and separation are often confused, but Virginia law treats them very differently. Separation is the foundation for a no-fault divorce, while desertion is a fault ground under Virginia Code § 20-91. The distinction depends on intent and the circumstances surrounding the spouses’ decision to live apart. When the intent is unclear or communication is poor, the situation can escalate into a contested issue that influences both strategy and outcomes in a divorce case.
What Counts as Desertion
Desertion occurs when one spouse leaves the marital home without justification and with the intent to abandon the marriage. Courts look at the conduct leading up to the departure, the communication between the parties, and whether the spouse who left had a lawful reason to do so. Desertion requires both the act of leaving and the intent to sever the marital relationship. If both elements are present, it may provide grounds for a fault-based divorce under Virginia Code § 20-91.
When Leaving the Home Is Lawful Separation
Not every departure from the home is desertion. A spouse may lawfully separate when he or she intends to end the marriage and communicates that intent clearly. Justification matters.
Emotional conflict or a clear breakdown in the marital relationship can justify a spouse’s decision to separate. In these situations, the spouse who leaves is not abandoning the marriage; instead, the departure marks the beginning of living separate and apart, which starts the timeline for a possible no-fault divorce under § 20-91(A)(9).
Courts treat separation as a factual question. Intent, communication, and conduct all help determine whether the move marked the end of the marriage or amounted to unlawful abandonment. If you need a clearer explanation of how separation works read our Guide to Separation in Virginia.
Constructive Desertion
Virginia recognizes constructive desertion when one spouse creates conditions so intolerable that the other spouse cannot reasonably remain in the home. Acts such as cruelty, abuse, or threatening behavior may justify leaving and shift fault to the spouse who engaged in the misconduct. In constructive desertion cases, the spouse who leaves is not considered the deserter. Instead, the court views the abusive or harmful conduct as the act that ended the marital relationship.
Constructive desertion claims are highly fact specific. Courts assess the seriousness of the conduct, the impact on the spouse who left, and whether remaining in the home would have been unsafe or unreasonable.
Why the Difference Matters
Whether a departure is desertion or lawful separation can influence several parts of a divorce case. Desertion as a fault ground may affect spousal support, credibility, and negotiation strategies. Lawful separation, by contrast, begins the clock for a no-fault divorce and does not carry the same negative inferences. Clear communication, documentation of intent, and early legal guidance help prevent misunderstandings that can escalate into fault-based claims.
For more on how fault grounds influence divorce strategy, see our Guide to Divorce in Virginia.
How Virginia Family Law Center Helps
Our attorneys advise clients on how to protect themselves before leaving the home, how to communicate intent in a way courts will recognize, and how to gather evidence that distinguishes lawful separation from desertion. We also litigate cases involving desertion and constructive desertion when fault must be proven or defended against.
If you need help determining whether your situation is desertion or lawful separation, call 703.865.5839 or request a Free Case Review.
About the Author
Sharie Reyes Albers is a Partner at Virginia Family Law Center and has represented clients across Northern Virginia in separation and divorce matters for more than a decade.
