American states have only begun to freely allow divorce in recent decades. This revolution has led most divorcing couples to pursue no-fault divorces, but sometimes an abandonment divorce or other “fault” divorce will make sense.
Fault divorce basics
Divorce was generally not allowed in England, as Henry VIII famously used legal loopholes, dissolution of the church, and outright murder to escape his marriages. In early America, divorce was still mostly illegal until the 1820s when divorce became an option for ending marriages when one spouse, usually the husband, was at fault. The fault grounds included things like abuse, abandonment, and having an affair. Eventually, people began to use these fault grounds to get divorced even when there was no actual fault. A couple that simply wanted to separate might tell a judge that the husband had an affair, even if he did not. Ronald Reagan (a divorcee) signed the first no-fault divorce law in 1969 when he was the governor of California. The law allowed couples to simply say that they have “irreconcilable differences” and then ask a judge to end their marriage. No-fault divorce then slowly spread across the rest of the country.
Virginia’s divorce law gives a good example of how this usually works today. A couple can divorce with no fault if they have “lived separate and apart” for one year (or six months if they have no kids). This no-fault rule just means the couple has been separated for a cooling-off period and they have no hope of reconciling. Virginia still has several fault grounds for divorce, though. This includes (1) adultery (having a sexual relationship outside the marriage), (2) being convicted of a felony, (3) cruelty (domestic abuse), and (4) abandonment. Virginia’s law specifically says a judge must consider a felony conviction, cruelty, or abandonment when splitting up a divorcing couple’s property.
Do you really want to go the fault route?
Even if you have been abandoned, a no-fault divorce may be your best choice. You can petition for divorce and if your spouse does not respond you can usually be granted a divorce without the other spouse’s participation. If your spouse has abandoned you then it is unlikely that you will need to fight over child custody or property division. Even in the situation where you want to use the abandonment divorce process to secure your share of property from the marriage, you can usually get your half and more through a no-fault proceeding.
In some circumstances, it can make sense to get an abandonment divorce. A state like Virginia may award you a greater share of property from the marriage if you have been abandoned. Most states will obviously be unlikely to grant custody to a spouse found to have abandoned his or her family. Securing an abandonment divorce will typically proceed like a normal trial. If your spouse contests your claims, you will probably have to testify and bring in other witnesses to prove you were abandoned. If your spouse does not show up to court you may be able to get an abandonment divorce by default, though.