Episode 9: Abandonment of Marriage
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Welcome to What To Do When… a podcast from real lawyers with real perspective, where we explore a variety of legal issues and scenarios. Each week we focus on a new topic and discuss what to do when and if any of these legal scenarios ever happened to you or a loved one. With over 40 years of combined legal experience, our hosts offer their unique perspectives and insights on a range of real life legal situations.
Jackie Critzer 0:27
So Scott, what’s on the docket for today?
Scott Cardani 0:30
What to do when you fear abandonment?
Jackie Critzer 0:34
That’s a loaded topic.
Scott Cardani 0:36
What does abandonment mean?
Jackie Critzer 0:37
I mean, what does it mean,
Scott Cardani 0:39
Does it scare you? It scares us. Abandonment is the concept of a fault grounds divorce where one of the parties leaves, but what’s the definition? Does that mean they just leave?
Jackie Critzer 0:52
If I mean, anytime someone leaves, isn’t it desertion? Hmm. Well, the code really kind of talks about and and it’s not even the code. It’s maybe colloquial, there’s probably some case law we can we can pull up, but it’s really, the question is, is someone leaving without just cause or provocation? Very lawyer leave sort of terms, but just cause what does that mean? Can I can I leave if you’re snoring too loudly? Is that just cause?
Scott Cardani 1:23
Yeah, in really, because we’re a hybrid kind of state where we have a no fault and fault grounds, it really starts to get tricky, on how to even answer that. But abandonment technically means that you’ve left the marriage with a reason without a reason, excuse me, or without being provoked. Say you’re in a marriage where there’s violence or cruelty or I don’t know, whatever else you can think of, and you just can’t take it anymore. And you leave, you would have both just cause and provocation to leave.
Jackie Critzer 1:57
But that doesn’t mean that if your spouse goes and talks to a lawyer that they’re not going to say that that you didn’t abandon right, they can still accuse, you have abandoning?
Scott Cardani 2:07
Yeah, and that’s why we brought this up. It is one of the I think the most used scare tactic in divorce is this word. If I leave, I’ll get caught with abandonment. And, you know, and even people who have a really just cause or provocation to leave are so fearful this word, and lawyers thrown around like it has this Gramma toss or weight like that word.
Jackie Critzer 2:30
It’s a big lawyer word.
Scott Cardani 2:33
This tremendous weight to it, and really does it Jackie?
Jackie Critzer 2:38
Well, so So you’re trying to get in the courthouse door if you’re using grounds for divorce, not uncontested, not just we’ve been separated for the period of time, we’ve been required to be separated, which is a whole nother podcast. If you’re using grounds to get in the courthouse door, it’s a key to get in open the door, then you’ve really got to weigh your options. Is it is abandonment, your best option? Well, what does it take to to allege abandonment. So that really though the code talks about getting a final divorce decree a year after the desertion occurred? So does that mean you have to wait a year after the desertion occurred to file for divorce?
Scott Cardani 3:20
now and the reason you use grounds basically? I mean, obviously, there are real reasons. There’s real grounds. But the reason you do it is because you get in the courthouse immediately.
Jackie Critzer 3:31
Why is that important?
Scott Cardani 3:32
Well, you start to get this the privilege of the divorce action, which is discovery and those kinds of things. You start filing motions and petitions and things like that. When you’re separate and apart for a year and waiting for that year to run. You have no ability to do anything, you’re just waiting. So a lot of attorneys and a lot of people want somehow to get this process started. And so they use abandonment or cruelty or adultery to get into the courthouse and get the process started. Now, what Jackie was saying, I think it’s really important to understand this. It’ll never happen. But say you filed with your client for abandonment on January 1. In some by some miracle of God February 1, you got the judge to rule on the abandonment when speedy? Yes, yeah. And you got him to rule you still from that ruling. You have to wait the period of time to make that divorce finalized. Now. In that period. You’re kind of like in that separation. You’re legally separated, all those kind of things, but to have the doors finalized, you have to wait that year. And that’s kind of an oddity in the law, kind of an oddity in Virginia law and a lot of states have abandoned that because of that oddity and they’ve just gone to no fault.
Jackie Critzer 4:47
Well, I’m part of the confusion, I think, between attorneys and people trying to figure out what the waiting periods are to get into court is that in Virginia, the uncontested divorce filing you You actually have to be separate and apart for your requisite period of time.
Scott Cardani 5:04
Which we’ll say real quick, with children a year without children at six months.
Jackie Critzer 5:08
As long as you have a Separation Agreement. You can there’s there’s that little catch. And we get that question a lot too. But we’ll go into that uncontested divorce, and how easy it really can be in another podcast. But the requirement that the abandonment be alleged does not mean that it has to have been a year’s worth of abandonment, it means you can’t get a divorce until the there a year has passed from the abandonment event.
Scott Cardani 5:33
Exactly. And so for instance, you wake up one morning and your spouse has left packed her bags and we have this all the time, quite frankly, one person is just checked out.
Jackie Critzer 5:45
Scott Cardani 5:47
You have abandonment at that moment. Now, are they leaving? And see this is where the just cause and provocation starts to get wonky? Are they leaving to start the one year separation process? I want to divorce I’m leaving. I’m starting the one year separation, that abandonment. And is that abandonment? Most courts are I find don’t take that as abandonment doesn’t matter.
Jackie Critzer 6:09
Right. That’s that’s the next right. That’s exactly where you’re headed. Let’s just say, Okay, it’s time to separate and I’m leaving or you’re leaving in and maybe there wasn’t a conversation about it beforehand. And the allegation from this non leaving spouse is that there was abandonment. And let’s say they can show in court. Well, there was no reason we never ever kind of had a conversation about separating. We were still physically intimate. We were still emotionally intimate, or finances are still intertwined. And then you just left that Monday, I came home from the grocery store and all your stuff was gone. Is that going to matter at the end of the day or at the end of a divorce trial?
Scott Cardani 6:50
See, and that’s my point. And I think I tell this my clients all the time, I’m like, Okay, say they proved that you abandon the marriage to what end? Because if that’s the only cause, and that’s the only thing you’ve done wrong, then how does that affect what is the real issue in marriage and divorce is how you separate the things that you have your marital property. And I just don’t find that courts or judges are that willing to make a big deal about it, I still think they stay pretty much at 50% / 50%, even if abandonments proven. Now on the other hand, if abandon is the type of abandonment we’re talking about, where the husband’s the sole provider, the wife’s, the sole provider, will take the wife, she’s got the capital, one job is to stay at home dad, and he wakes up, the bank counselor drained, there’s no food in the frigerator. He can’t keep the lights on that’s abandonment. And the Court I think, will look at that and go, that’s pretty sad to leave somebody in that kind of situation. And I think that will affect the outcome of the property split. And that’s a fault, where it starts to impact the very lives of the people there. But if it’s just one of those things where so to speak, it’s more of a amicable separation. It’s just, I’m too tired for me leave. I just don’t think the courts have that much of a concern about it. I don’t think it really matters, unfortunately. And I don’t know how to say that other than that, and I’m not trying to diminish it as much as I’m trying to diminish it.
Jackie Critzer 8:18
So we’ve talked about the physical act of deserting or abandoning. And there’s sort of a nuance in the law. I’ve seen it, I’ve used it, I’m sure you have to and perhaps one of our listeners has been accused of it or wants to accuse someone of it. And that’s the constructive desertion or constructive abandonment. Can you wait, can we just start with what what does that even mean?
Scott Cardani 8:40
Yeah, constructive. It sounds like you’re building something, you know. But constructive is actions or behaviors that create a situation where really you’re left be abandoned. And I think one of the easy ones for me is your spouse gets addicted to heroin. And is gone all the time, using all the time even when they’re there. They’re not there, because they’re high all the time. They’ve constructively left that marriage, they may be in the house every day, maybe walk it around physically may be sleeping beside you in the bed, but they’re gone.
Jackie Critzer 9:16
And addiction really, unfortunately, is a very prominent reason for constructive desertion and abandonment, at least in my experience, and it’s not necessarily heroin, it could be it could be perfectly legal things like alcohol, where the person is, you know, they’ve reached the point where they’re hiding the drinking, or maybe they’ve gone past the hiding and now they’re just in the open, overly drinking. But what happens is this withdrawal of physical affection and emotional attachment, and I have been able to to allege that there’s constructive desertion based on addiction because of that it’s it’s not that they got up and left it’s not even that they didn’t come home several nights. It’s that they they really withdrew all love and affection both Physical and emotional over a period of time. And that leaves that’s the, it’s very difficult to survive a marriage like that. And that would be constructive. So it’s not the physical act, but it is the emotional act.
Scott Cardani 10:12
Can you think of any other places where that constructive abandonment would play?
Jackie Critzer 10:17
Well, I sometimes I’ve used financial, the financial abandonment where the spouse has withdrawn all access to funds from the other spouse, but they’re still in the house, but they’re still in the house. And if the if the one spouse needs to go to the grocery store, or get gas in the car, it’s this power move, to have to ask for an allowance or have to ask for some sort of money to be able to go and do these basic functions that they maybe otherwise didn’t before. So a financial abandonment also can be the reverse of that where they’re just overspending. overspending and but that’s that’s certainly more difficult, I think, and usually is coupled with with other abandonment issues than than just by itself.
Scott Cardani 11:00
And I even think we were just talking about this earlier, off camera, but even pornography and those kinds of issues when they, when the husband or the wife is spending hours and hours in a virtual world. Doing God knows what, but usually in the pornography sphere, and I’m really concerned that these video games and these, you know, we’re wearing the visors now and we can enter these chat rooms and things like that and do all kinds of things. And, you know, I don’t think the courts caught up with that as abandonment yet I mean, adultery yet, but it certainly is constructive abandonment. And I think you got to kind of read both of those and really start to push that issue. Because if your husband sitting down every night and spending 17 hours with women, through the internet, even if it’s just pictures he’s left to, you know, absolutely the marriages, the amount of damage that pornography does to a marriage, even when both parties are participants is horrific. We see it every day. Sure. So when it’s one party, the damages is just astronomical. And it is an absolute grounds for divorce, I kind of like to push it towards the adultery issue, because I do think it’s adultery, it’s having sex with another woman, whether it’s virtual, or, you know, whatever. But we can talk about that later. But I thought I wanted to bring that last point up, because we really believe that’s an issue that a lot of people face, they think they have to just live in that environment. And it’s devastating.
Jackie Critzer 12:30
And I think we’re seeing it more and more, partly because, dare I say COVID, in so many people who weren’t going to work going to the office, not sitting at home in the privacy of their living room on their computer, but going to work and, and engaging with real life people every day, have been for the last two years better part of two years, next month, next week and a half will be two years from the shutdown, really. And so many companies are still having their executives and even just middle management working from home. That’s where we’re seeing even a greater uptake. I think we’ve seen pornography as an issue in divorce for a long time because it generally leads to other grounds, unfortunately. But I think in the last two years, we’re seeing to just I personally in the cases, I’m seeing a huge uptick in the pornography being a problem and leading to the dissolution of a marriage.
Scott Cardani 13:26
Well, folks, that’s really all we wanted to cover. I think the greatest point about this is when the word abandonment comes up, what should they do, Jackie?
Jackie Critzer 13:34
Well, first, you got to call a lawyer. Right? You got it, you need to understand what abandonment means. And and not be fearful, right? Not be fearful of leaving, if it’s time to leave, or, you know, taking the time to sit down with someone who can explain to you if whether abandonment is the right way to go. Or whether there’s really should be a fear of that.
Scott Cardani 13:57
Or whether you’ve actually been abandoned even, you know, and so when you have those questions, and they come and you go what, what is this I want to leave am I going to abandon all those things that pop up, that’s what we’re trying to address right now is when that word comes to you, either from the other spouse or it’s in your own mind, call us, we can help you walk through that and show you what you need to do or may not need to do or how to walk through that in a way that it doesn’t impact you in the end and it doesn’t create a problem. Because quite frankly, there are so many ways to do this where it won’t create a problem. I believe that it’s worth talking to a lawyer not get yourself over a barrel as they say before you need to.
Jackie Critzer 14:39
Having a good legal foundation for any of your divorce questions is that is the first place to go.
Scott Cardani 14:44
It really is that’s how people I just want to say this this is how we get calls sometimes they it’s like that it’s that big of an urge. They hear this word and they Yeah, it’s like oh my gosh, what am I gonna do it please just call us don’t live in that panic world. Don’t live in that fear. Just call us. Let us walk you through it so you can be at peace. That’s why we got into this business. That’s why we do what we do. We want people to have peace. We want people to live out of their fullest potential. That’s why we do what we do. We can listen to you figure out your circumstances and give you advice for your specific needs.
Jackie Critzer 15:21
Absolutely. So thank you for joining us today on the topic of abandonment in divorce, and look for our other podcast for other grounds in Virginia like adultery. That’s a hot topic, so we’ll be covering that soon. Thank you.
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