Legal Question in Family Law in Virginia

Constructive desertion

About 1 and 3/4 years ago my wife and I started to get a separation but stopped because we could not agree on custody. No formal separation exists between us. She is an alcoholic and averages 1.5 to 2 bottels nightly. We started to go to counsiling but she stopped. I have continued for over 1 year. She decided to move into the basement for some space to sort things out. I told her that was not the best way to work on our problems but she did anyway. Note that when she decided to do this I bought her a bed to sleep on in the basement. She has refused to come back to the bedroom or have marital relations and I have encouraged her to do both. May 21 will be 1 one year mark. She will not get help for her drinking and she will not file for divorce because she feels she will loose the kids due to her drinking. When she is drinking that are a lot of arguments and she blames me for all the problems in the marriage. Do I have grounds to file for a Constructive desertation and crulety or have I agreeded to our seperation based on the fact that I helped set her up in the basement?

If I have agreeded how do I inform her that this is unaceptable or have I already done that by telling her to come back?


Asked on 5/14/07, 10:50 am

1 Answer from Attorneys
Michael Hendrickson Law Office Michael E. Hendrickson

Re: Constructive desertion

If you have credible proof that you and your spouse have lived separate and apart continuously and without cohabitation for the required 12 months, even though still in the same household, that would be sufficient grounds for a Virginia no-fault divorce action. (I would not advise your attempting to go the constructive desertion route as a viable ground for divorce.)

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Answered on 5/14/07, 4:52 pm


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