When Am I Justified in Leaving My Abusive Spouse and Our Home?

Posted by Elena Iuga

In my practice of domestic relations law, I have frequently encountered this question: “Will I be guilty of desertion if I leave my abusive spouse?”.  Both male and female clients have asked this question.

The answer, as with almost everything in the law, is “it depends.”  First, in Virginia, the grounds for divorce are provided in the statute.

Va. Code Ann. § 20-91A (6) states:

A divorce from the bond of matrimony may be decreed:

Where either party has been guilty of cruelty, caused reasonable apprehension of bodily hurt, or willfully deserted or abandoned the other, such divorce may be decreed to the innocent party after a period of one year from the date of such act; (emphasis added.)

If a spouse can demonstrate cruelty by the other, then it is not unreasonable for him or her to have left the marital home:

Desertion as a ground for divorce does not depend on who actually leaves the marital home. Rather, “it means desertion of the marital relationship,” and it “may be ‘constructive,’ for cruelty by one party, which results in the other party’s enforced separation.”

Buchanan v. Buchanan, 2003 Va. App. LEXIS 494, *9, 2003 WL 22232768. (internal citations omitted.) (emphasis added.)

One person’s idea of “cruelty” may be very different from another’s, and a perception of being a victim of cruelty is highly subjective.  When will a court find the other spouse’s actions to have amounted to “cruelty”, so as to allow for the divorce based on constructive desertion?

Virginia cases have set the same threshold:  the acts of cruelty

“must be very serious and such as amounts to extreme cruelty, entirely subversive of the family relations rendering the association intolerable.”

Zinkhan v. Zinkhan, 2 Va. App. 200, 209, 342 S.E.2d 658, 663, 1986 Va. App. LEXIS 260, *18-19

In practical terms, the spouse who leaves the marital home because of the other spouse’s abuse, must demonstrate more than one incident of bad behavior, unless it is extreme.  The departing spouse must demonstrate that it is unsafe to continue to reside with the offending spouse.

Generally, Virginia courts have shied away from finding cruelty or constructive desertion when there is no element of danger or threat of physical harm to the departing spouse.  In doing so, they have relied on an 1878 decision by the Supreme Court of Virginia, which states:

[W]hat merely wounds the feelings without being accompanied by bodily injury or actual menace — mere austerity of temper, petulance of manner, rudeness of language, want of civil attention and accommodation, or even occasional sallies of passion that do not threaten harm, although they be high offenses against morality in the married state, does not amount to legal cruelty.

Latham v. Latham, 71 Va. 307, 320-321, (1878).

However, an argument can be made that certain words and threats that do not directly refer to physical harm, can also amount to cruelty and constructive desertion.  A clear example of such behavior is when one of the spouses maliciously manipulates the legal system against the other, either by obtaining frivolous civil protective orders, or by frivolously calling the police.  Threats of or actual calls to immigration enforcement officials against a foreign spouse, which could deprive that spouse of their legal immigration status, can seriously endanger the foreign spouse, when returning to their home-country would be unsafe.

Please contact our office to discuss your particular situation with one of our attorneys.

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