Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Monday, January 14, 2008

Case Law Development: Virginia Court Distinguishes Abandonment in Divorce and Elective Share Analysis

The Virginia Supreme Court found that the trial court did not err in ruling that an estranged husband was not eligible for an elective share of the spouse's augmented estate. The court noted that the record shows that both before and after the parties separated, the husband showed none of the normal indicia of supporting his spouse or of the marital relationship. The evidence was sufficient to support the trial court’s holding that he abandoned his wife prior to and continuing until the time of her death

The decision required the court to distinguish the term abandonment as used in divorce actions wtih the analysis of abandoment in this case:

While the term "abandonment" is similarly defined for purposes of domestic relations and elective share matters, there are significant differences in the analysis of the evidence when resolving the issue in the domestic relations and elective share contexts. For example, as we have noted, the relevant time period for determining abandonment for purposes of [elective share analysis] extends to the time of the deceased spouse's death and is not limited to the moment of separation, or the filing of a petition for divorce, as it is when abandonment is the ground upon which a divorce is sought. ... A second distinction is the effect of the parties' agreement to separate or to seek a divorce. In an elective share analysis, an agreed separation or petition for divorce is relevant evidence of the termination of cohabitation, but is not evidence which defeats a finding of willful abandonment. In contrast, such an agreed separation or divorce petition may preclude a claim of abandonment in a divorce action because a finding of abandonment in that context is based on fault which is inconsistent with parties agreeing to terminate cohabitation or to seek a divorce. With these distinctions in mind, we now turn to the evidence in this case.  In this case, the mutual decision to cease cohabitation and Dorothy's divorce petition based on living separately for more than a year implies that the termination of the marital relationship was not the product of willful abandonment but rather an agreement between the parties.

The court found dispositive Husband's conduct during and after the separation in his failure to support or care for Wife. 

Purce v. Patterson, (Virginia Supreme Court January 11, 2008)
Opinion online (last visited January 13, 2008 bgf)

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