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In this edition of Ask General Counsel, the family/divorce attorneys of General Counsel P.C. discuss a recent case where the court clarified that leaving a marriage for mental health reasons may be legally justifiable – but, determined that in this case, the facts did not support that outcome.
In Payne v. Payne, the wife filed a complaint seeking a divorce, and the husband argued that the wife had deserted the marriage. When the kids moved out of the family home, the couple grew apart, and the wife started sleeping in a spare bedroom.
The wife began suffering from anxiety, depression and panic attacks. She stated that unless her husband agreed to try marriage counseling, she would leave him. After offering multiple marriage counselors for consideration, he declined to go, and she left him, moving into her own apartment.
The husband claimed he neither forced nor told her to leave the home and did not request a divorce. The husband claimed she deserted the marriage. At trial, the court ruled that the wife’s mental health problems did not provide justification for her desertion.
In Virginia, desertion is grounds for divorce. When a spouse “has willfully deserted or abandoned the other a divorce may be decreed to the innocent party after a period of one year.” (Code § 20-91(A)(6)).
Desertion occurs with a breach of matrimonial cohabitation and an intent to desert in the mind of the deserting party (Pruce v. Patterson, 275 Va. 190, 195 (2008)). In Virginia, a spouse may abandon their marital “duty” even when the spouse has not left the marital home (Jamison v. Jamison, 3 Va. App. 644, 647-48 (1987)).
Courts consider whether the normal indicators of a marital relationship have ended, and whether the deserting partner intends not to resume the marital relationship (Purce, 275. Va. at 195). In Payne, the wife began sleeping in a separate bedroom, and described their relationship during this time as “liv[ing] separate and apart.” The wife gave her husband the ultimatum of participating in marriage counseling or leaving him. Then when he declined to participate, she moved out. This constituted desertion of the marriage.
The wife in this case claimed that because of her mental health problems, she was legally justified in leaving the marital home. In certain circumstances, a party may be justified in leaving a marriage even if grounds for divorce do not exist.
There is no fixed formula for when justification exists. But generally, one spouse is justified in leaving when the other spouse’s conduct “creates conditions so intolerable that the other spouse cannot reasonably be expected to remain in the home.” (Kerr v. Kerr,6 Va. App. 620, 624 (1988)) The leaving spouse has the burden of proving that their departure from the marriage was for a reason other than the intent to desert (D’Auria v. D’Auria, 1 Va. App. 455, 459 (1986) (citing Graham v. Graham, 210 Va. 608, 610 (1970)).
Virginia courts have routinely recognized desertion as justified in circumstances of intimate partner violence and other forms of intolerable mistreatment and cruelty. However, a gradual deterioration of the parties’ relationship, as in this case, does not support a justification for desertion.
Here, the wife’s recurring mental health problems were not sufficiently intolerable and were not created or caused by the husband. It would be possible for mental health problems to justify desertion from a marriage. But the departing spouse must show that the non-departing spouse “‘caused conditions in the marital home to be intolerable’ and that as a result, ‘the departing spouse reasonably believe[d] that . . . her health [wa]s endangered by remaining in the household.’” (Gottlieb v. Gottlieb 19 Va. App. 77, 82 (1944); D’Auria 1 Va. App. at 459).
Here, even if the wife’s mental health was impacted, there was no evidence showing that it was caused by the husband, or that the situation was so intolerable she could not be expected to remain in the marriage.
Led by Joanna Foard, General Counsel, P.C.’s family/divorce can help you. Divorce and related matters can be complex and because of their importance, it is beneficial to consult with an attorney experienced in family law matters. Our family law attorneys are well-versed in divorce matters and can help you navigate the process and protect your rights. Email us at email@example.com, call us at 703-556-0411, or use this Contact Us form to see how we can help you.