So my friend Amy came to to talk to me about family law problems. Her husband had walked out rather unexpectedly. They owned a home in Virginia, and her children were mostly grown and gone. She was really annoyed that Mike was gone for the last few weeks, and asked our Firm what she should do. I answered her question thus:
Sounds like it might be time to file for divorce. If he has been absent for more than 30 days, you have a strong case for desertion. That gives rise for an at-fault divorce. As you have no young children at home (all 18 or older), you should be able to get a standard, no-fault divorce in 6 months (must be separate and apart). However, if you prove cause, you may be able to get it sooner. The law dealing with these matters, and others discussed in this post, can be found at VA Code §20-79.
Speed, however, is not the salient reason for filing a for-cause divorce. In fact, the advantage is one of positioning. During the opening volleys of the divorce engagement, you will file what is known as a “pendente lite” hearing request. Often, this is filed at the same time as the initial complaint for divorce.
The more “bad” acts you can prove (such as desertion giving rise to the for-cause divorce) the more cogent your pendente hearing arguments will be. Arguments often brought up at the hearing include: sole use and position of the marital home, spousal maintenance and support during the pendency of the divorce (the final amount, if any, will be determined at the conclusion of the divorce trial), child custody and support (not entirely relevant to your question), and use of shared resources (such as vehicles, savings accounts, medical plans, etc.).
There are several intervening steps that can be used to effect a legal separation without filing a divorce. Without knowing your situation more thoroughly, it is unclear if a divorce as mensa et thoro (legal separation as opposed to divorce) would be useful in your instance.
If you would like to talk about how to go about getting the best outcome for your situation — namely, should you file now or wait the 30 days for your best desertion filing — give us a ring at 703-402-2723 or email us at firstname.lastname@example.org.