Legal Question in Family Law in Virginia

Re: planning separation but want to protect custody rights

If you were to leave the home she could petition for divorce based on desertion. That is always a risk. However, keep in mind that a spouse can be justified in leaving the home if he has grounds for divorce (constructive desertion or cruelty for instance); in certain circumstances, the conduct of the other spouse may justify a spouse's leaving without being subject to a charge of desertion, even though the conduct is not sufficient cause for divorce. Such a justification exists when a spouse's conduct creates conditions so intolerable that the other spouse cannot reasonably be expected to remain in the home. However, a spouse is not legally justified in leaving the other spouse simply because the marital relationship has gradually broken down.

Another avenue you could pursue is to file for divorce (if you have grounds...i.e. cruelty, etc) and then leave. This is because generally one spouse is not guilty of desertion for separating from the other spouse after instituting a suit for divorce or while such a suit is pending.

That being said, even if you were the one to leave, your leaving is only ONE factor in a list of many other factors for the judge to consider in determining custody. The judge is concerned with what is in the best interest of the children. Depending on the facts of the case you could leave and still get custody of the children.

If you have any questions please do not hesitate to call my VA office at 703-598-9220 or MD office at 301-652-0663.

Re: planning separation but want to protect custody rights

Frankly, your questions are more complicated than I would want to answer in quick fashion.

Don't separate until you have consulted with an attorney in his/her office.

Many attorneys, myself included, offer free initial consultations on this type of issue. If you are in the Tidewater (Hampton Roads), Virginia, area, assuming no conflict of interest, e.g., representation or advice to the opposing party on the same or other issues, I would be happy to meet with you.

If you are too far away for your convenience, be sure to consult with an attorney before taking action and bring notes as to your questions with you to the consultation. Even if you cannot find a free consultation, it is worth $50 to $100 or so to you to get answers before acting. Consider it preventive maintenance for your life.