When one spouse abandons another in the State of Virginia it may be considered desertion. Desertion occurs when one spouse, without the permission of the other breaks off marital cohabitation with no intention to return. Abandonment or desertion is a legally defined term in Virginia and is considered a grounds for divorce. If you are trying to get a divorce from a spouse with no knowledge of where the spouse is, the process may be difficult but it is still possible in the State of Virginia. Because desertion is considered a legal term it is strongly advised to seek an attorney in order to navigate the process and make sure each step is taken for a proper divorce.
Two Types Of Desertion
In Virginia there are two types of desertion: actual desertion and constructive desertion. Both types of desertion constitute as a legal ground for divorce in Virginia. Actual desertion takes place when one spouse, without the permission of the other spouse, packs up and leaves. Therefore, when one spouse packs up his or her clothes, shoes, and possessions, and moves into another apartment with no intention of returning, actual desertion has taken place. Leaving one’s household for one night is not enough to be considered actual desertion, as it must be clear that there is no intention to return for actual desertion to take place. However, desertion can also take place when the spouse has not physically left the household. Constructive desertion takes place when one spouse has created an environment within the household that it is so cruel or hostile that living with them has become unbearable to tolerate. As such, constructive desertion can be the destruction of a healthy home life such that a spouse feels he or she can no longer continue living in those circumstances. For example, cruelty or emotional abuse of one spouse would be sufficient enough to cause constructive desertion because the household has become unbearable to stay in. The main issue for constructive desertion would be that the situation at home has risen to the level where any reasonable person would feel their mental or physical safety may be harmed by remaining in the house with their spouse.
What If I Cannot Locate My Spouse?
It is possible to obtain a divorce even if you can not locate your spouse. When desertion takes place, divorce is still a legally acceptable option. This process may take more time and an attorney can assist you in following Virginia law so that you fulfill each legal step. Typically you must first attempt to properly serve your spouse at their last known address. If there is no response you must then run an ad in the newspaper for 4 consecutive weeks notifying that a divorce is being sought. This ad must be done through the court and there is a special form that will be filled in order to start this process, known as a Motion to Serve by Publication or Posting. If a judge finds that you have made enough effort to find your missing spouse, the judge will allow you to publish the ad. An attorney will assist you in navigating this process of what a sufficient search for your missing spouse can include. After the ad has run in the newspaper for the required amount of time, your spouse will be given a certain amount of time to respond. If your spouse still does not respond you may schedule a hearing to finalize a divorce.
Virginia Allows For A Divorce Even If You Cannot Locate Your Spouse
Not knowing where your spouse is after they have deserted you is not a barrier to divorce. You can still get a divorce even if you have no idea where your spouse is, however, the process may take more time and requires specific legal steps. To ensure you finalize a divorce by taking the proper legal steps, contact or call an attorney at the office of Shannon & Associates at (757) 228-5529 so that every requirement is fulfilled. Divorce is a difficult process and to ensure your rights and needs are protected it is highly recommended that an experienced family law attorney be consulted at the onset of this decision.