Please ensure Javascript is enabled for purposes of website accessibility
Home / Opinion Digests / Family Law / Court properly found wife deserted marriage

Court properly found wife deserted marriage

Even though the record supports grounds for divorce based on the parties living apart for a year or more, the record also supports the trial court’s finding that wife deserted the marriage. The trial court was free to choose either ground.

Further, the trial court properly “granted wife a reservation of spousal support in the future.”


“Code § 20-91(A)(6) provides that ‘[w]here either party has … willfully deserted or abandoned the other, ‘[a] divorce may be decreed to the innocent party after a period of one year from the date of such act.’ …

“Desertion or abandonment is defined ‘as “a breach of matrimonial duty – an actual breaking off of the matrimonial cohabitation coupled with an intent to desert in the mind of the deserting party,”’ … and is  usually effected when a party physically leaves the marital home and does not return. …

“Moreover, this willful breaking off occurs ‘without the consent and against the will of the other spouse.’ …

Here, the record supports dual grounds for divorce. With their relationship under strain, husband and wife began to sleep in separate bedrooms before wife left the marital home in early January 2019.

“When wife returned to the marital home, she and husband continued living apart from each other. Although they shared a residence and continued contact, they no longer shared a joined life consistent with marriage.

“Indeed, wife averred that during this period she and husband ‘lived separate and apart … without cohabitation, and with the intent to remain separate and apart permanently.’ Wife admitted that she conditioned her remaining in the marital home on husband’s participation in marital counseling.

“When husband did not respond to her demand, wife left the marital home and moved into an apartment. In her motion for reconsideration, wife acknowledged that she left the marital home as a means of self-care, ‘to get better mentally.’

“Husband testified that he did not force wife to leave the marital home, did not tell wife to leave the marital home, and did not tell wife that he wanted a divorce. According to husband, when wife left the marital home the first time, she told him that ‘[s]he did not want to be there.’

“Even as her physical residence varied, wife maintained marital separation from husband from the time she initially left the marital home in January 2019 through the entry of the final decree of divorce in December 2021.

“Based on this evidence, the trial court found that wife deserted the marriage, having broken off the matrimonial cohabitation with the intent to end the marriage.

“It is true that the same evidence supports a divorce based on the parties’ separation of one year. … Yet, ‘because multiple grounds existed … the [trial] court was free to choose between those grounds in granting the divorce, and did not abuse its discretion by granting the divorce on the grounds of” desertion. …

“Wife asserts that there ‘was no corroboration of th[e] finding’ that wife deserted husband. For support, she points to the trial court’s finding that ‘[n]either Wife nor Husband testified as to Wife’s reason for leaving the marriage.’

“Yet, the record is not silent on the issue of wife’s reason for leaving the marriage. Wife physically left the marital home after husband did not respond to her request for marriage counseling.

“The evidence establishes that she took additional actions to terminate or discontinue all indicia of the marital relationship: wife chose to live in a spare bedroom, in her parents’ home, and in a separate apartment to be separate from husband; she did not hold herself out as married; and she stopped contributing to marital debts and obligations.

“Husband’s testimony reflects that he did not seek or compel marital separation. He testified that wife told him that she ‘just had to leave.’ Combined, this evidence supports the trial court’s finding of desertion.”

Reason for leaving

Wife challenges the trial court’s finding of desertion by asserting that her departure was justified by her mental health, arguing that “her leaving was not abandonment, it was for her to get better mentally.” Wife’s reason for leaving the marital home does not constitute legal justification for desertion under Virginia law. …

“[W]ife testified to trust problems within the marriage, as well as to her recurring ‘mental problems.’ But her assertions fail to establish unreasonably intolerable conditions or conduct – unreasonable or otherwise – by husband that created or contributed to wife’s mental-health issues.

“Conflicts concerning trust, mental health, and other intangible elements can, we acknowledge, work like a potent solvent to slowly dissolve the bonds of intimacy and unity in a marital relationship.

“Yet whether such elements are sufficient to dissolve the legal bonds of marriage is a different matter. … Even if wife’s mental health was impacted by staying in the marital home, the record lacks evidence to show that her health was endangered due to husband’s conduct. …

“Hence, our applicable legal standards do not justify wife’s legal fault in deserting the parties’ marriage.”

Support reserved

“Wife contends that the trial court abused its discretion in declining to award her spousal support. … Wife argues that the trial court ‘heavily’ considered her fault when determining whether to award her a specific spousal support amount. …

“[T]he record demonstrates that the trial court took care to balance the fault grounds for the divorce against wife’s established financial need. At trial, wife admitted that her financial statement included estimated future expenses rather than expenses establishing a baseline for her current need.

“The trial court found that wife provided an unreliable financial statement that failed to track wife’s ‘current needs.’ Based on wife’s testimony, the trial court’s conclusion that wife failed to meet her evidentiary burden was not plainly wrong. …

“The court found that wife and husband had ‘acquired a large amount of debt during the marriage.’ In recognition of ‘the large disparity in income between the Parties [and] Husband’s ability to continue making payments,” the trial court assigned to husband the task of maintaining the debt and accordingly found that ‘Wife is not entitled to spousal support at this time.’

“Even so, the trial court awarded wife a reservation of spousal support, in recognition that she may, in the future, demonstrate a need for support. The trial court expressly found that it would be ‘manifest[ly] unjust’ to withhold such a reservation.”

Payne v. Payne, Record No. 0065-22-2, May 9, 2023. CAV (published opinion) (Callins) From the Circuit Court of Hanover County (Markow) Theresa Rhinehart for appellant. No brief or argument for appellee. VLW 023-7-165, 20 pp.

VLW 023-7-165

Virginia Lawyers Weekly