Montclair, Virginia · Fault-Based Divorce
When a spouse walks out, the one left behind often assumes that is automatically desertion, and that the law will punish it. The reality is more careful. Whether a departure counts as desertion and who the law treats as at fault depend on why it happened. Let me explain what desertion really means in Virginia and how it affects a divorce.
By Corrie Sirkin, Esq. · Founding Partner, NOVA Legal Professionals
This article is one part of our larger divorce guide. For the full picture, start with our cornerstone, Divorce in Virginia. Here, I will focus on desertion and abandonment.
What desertion means
Willful desertion, sometimes called abandonment, is a fault ground for divorce under Va. Code § 20-91. It takes two things: one spouse ends the marriage, and does so intentionally and without justification. For a full divorce on this ground, the desertion generally has to continue for a year. Leaving alone is not enough; the intent and the lack of a good reason are what make it desertion.
Leaving is not always deserting
Here is the part that surprises people. If the two of you agreed to separate, neither one deserted. And if one spouse was effectively forced out by the other’s misconduct, the law may hold the spouse who stayed at fault. That is called constructive desertion. So the spouse who physically moves out is not automatically the deserter; the question is why they left.
A Word About Who Really Left
Do not assume that walking out the door decides fault. If you left because staying was not safe or tolerable, the law may see your spouse’s conduct as the real cause, which is constructive desertion. The reason for the departure can matter more than the departure itself. Before you label yourself or your spouse the deserter, get the facts looked at.
Not sure if it counts as desertion?
A short conversation can tell you how the law is likely to see your situation. No pressure, no commitment.
Divorce from bed and board
Virginia also offers a partial divorce, a divorce from bed and board, under Va. Code § 20-95, which is available for desertion. It is a legal separation ordered by the court rather than a final divorce, and after a year it can be converted, or merged, into a complete divorce. It is not the right tool for everyone, but it exists for situations where a spouse needs the court’s protection before the full divorce is available.
Does proving desertion change the outcome?
Sometimes. Fault can affect spousal support and is one factor a court weighs when dividing property under Va. Code § 20-107.3(E). But like any fault ground, desertion has to be proven and corroborated under Va. Code § 20-99, not just asserted. Many couples in this situation still resolve the case on no-fault terms because it is faster and less costly. For the grounds in full, see our fault-based divorce page. A Montclair case is filed in the Prince William County Circuit Court, the 31st Judicial Circuit, at the Prince William Judicial Center, 9311 Lee Avenue in Manassas.
“The one who left is not always the one at fault. Why they left is the real question, and it can flip who the law calls the deserter.”
Corrie Sirkin, Esq. · Founding Partner
Corrie’s Practical Advice
Three habits help when desertion is in the picture. First, do not move out without advice if you can avoid it, because the circumstances of a departure can affect both fault and temporary arrangements. Second, write down what actually happened and when, since desertion turns on intent and reason, and a clear record helps. Third, weigh whether proving fault is worth it, because it must be proven and corroborated, and a no-fault resolution often reaches the same place with less cost and conflict.
Before you leave or blame, get the facts looked at. Desertion is about reasons, not just doors.
Authoritative References
Sources
- Code of Virginia, § 20-91. Grounds for divorce, including willful desertion or abandonment. law.lis.virginia.gov/vacode/title20
- Code of Virginia, § 20-95. Divorce from bed and board, available for desertion, convertible to a complete divorce after a year. law.lis.virginia.gov/vacode/title20
- Code of Virginia, §§ 20-107.3(E) and 20-99. Fault as a factor in equitable distribution, and the requirement that grounds be corroborated. law.lis.virginia.gov/vacode/title20
- Prince William County Circuit Court (31st Judicial Circuit). Divorce filing at the Prince William Judicial Center, serving Montclair. pwcva.gov/department/circuit-court
Statutory rules verified against the current Code of Virginia as of June 2026.
Frequently Asked Questions
Is my spouse moving out automatically desertion?
No. Desertion requires that a spouse end the marriage intentionally and without justification, and for a full divorce on that ground, that it continue for a year. If you both agreed to separate, no one deserted. And if your spouse was forced out by misconduct, the law may treat the spouse who remained as the one at fault. The reason for leaving is what matters.
What is constructive desertion?
Constructive desertion is when one spouse’s misconduct effectively forces the other to leave. In that situation, the spouse who physically moved out may not be the deserter, the law can treat the spouse whose behavior caused the departure as at fault. It recognizes that sometimes leaving is the reasonable response to how a spouse has behaved, not an abandonment of the marriage.
Should I move out of the house?
Get advice before you do. Leaving can affect how fault is viewed and can complicate temporary arrangements for the home and the children. It is not always wrong to go, sometimes it is the right and safe choice, but the timing and circumstances matter. A short conversation before you move can keep a reasonable decision from being used against you later.
What is a divorce from bed and board?
It is a partial divorce, a court-ordered legal separation, available for grounds such as desertion under Va. Code § 20-95. It is not a final divorce, but it gives the court a way to address the separation, and after a year it can be converted into a complete divorce. It is a tool for specific situations rather than the usual path most couples take.
Does proving desertion get me a better outcome?
It can affect spousal support and is one factor in dividing property under Va. Code § 20-107.3(E), but it must be proven and corroborated, not just claimed. Because that takes evidence and adds conflict, many couples still resolve the case on no-fault terms, which is faster and cheaper, and often reaches a similar financial result without a fault fight.
When You Are Ready
Let’s sort out what really happened in your Montclair case.
Tell me who left and why, and I will help you understand how the law sees it and what your options are. The first call is a conversation, not a commitment.