Divorce in Virginia
Divorce is a challenging process with legal complexities that vary by state. In Virginia, understanding the types of divorce as well as the grounds for divorce is crucial for couples navigating the dissolution of their marriage.
There are two types of divorce in Virginia. A divorce from bed and board (a mensa et thoro) is a divorce wherein the Court determines that the parties are perpetually separated and can make determinations as to their property. However, a bed and board divorce does not allow parties to marry another person. An absolute divorce (a vinculo matrimonii) is when the Court determines that the existing marriage between two persons is legally terminated, and both spouses may remarry.
Whether a client can file for a divorce from bed and board or an absolute divorce depends on the reasoning—or ground—for the divorce and whether the statutory requirements of the ground for the divorce have been met.
In Virginia, there are fault grounds and no-fault grounds for divorce. The attorneys at Stiles Ewing Powers handle cases on all types of divorce grounds, and we help clients understand the specific requirements for each ground and its implications.
Fault Grounds for Divorce
In Virginia, there are four fault-based grounds for divorce:
- Cruelty or reasonable apprehension of bodily hurt;
- Desertion or abandonment,
- Adultery, sodomy, or buggery committed outside the marriage; and
- Conviction of a felony after the marriage.
Cruelty
Cruelty can be established by physical or extreme emotional abuse that makes it unsafe or unreasonable to continue the marriage. Cruelty must be established based on the specific facts of each case and developed through testimony and evidence based on the case law in Virginia. If the alleged conduct is not physical violence, cruelty typically requires severe, repeated acts over a significant period of time that render marital cohabitation intolerable. Clients may file for a divorce from bed and board on cruelty grounds, but will have to wait one year before obtaining an absolute divorce.
Desertion or Abandonment
Willful desertion or abandonment occurs when one person breaks off marital cohabitation, coupled with the intent to desert the marriage. Both elements must be present. A mutual agreement to separate does not constitute desertion. There is also constructive desertion, which can occur when one spouse’s cruel behavior causes the other spouse to break off the cohabitation. In that situation, the offending spouse’s conduct is equivalent to desertion of the marriage. Like cruelty grounds, desertion allows a client to file for a divorce from bed and board, but will still have a one-year waiting period before obtaining an absolute divorce.
Adultery
In Virginia, if one spouse engages in adultery, sodomy, or buggery outside the marriage, that conduct establishes a fault ground for an absolute divorce. To prove adultery as a ground for divorce, specific evidence of a sexual relationship is required. Non-sexual cheating is not sufficient for adultery. Further, proving adultery must be done by clear and convincing evidence, which is a higher standard of proof than a preponderance of the evidence that other grounds for divorce require. Proving adultery requires proving the place, time, and person with whom the spouse had sexual relations, which may require the assistance of a private investigator to document proof of the affair. Adultery grounds allow a spouse to file for an absolute divorce without a one-year waiting period. Courts in Virginia also recognize post-separation adultery as a ground for divorce even if the alleged adultery did not cause the separation, though particular judges differ on how much weight they give post-separation adulterous acts.
Felony Conviction
Conviction of a felony after the marriage is also a fault ground that allows a spouse to file for an absolute divorce immediately. This fault ground requires that the spouse be convicted of a felony, sentenced to jail for more than one year, and actually be jailed. The spouse alleging this ground cannot have resumed cohabitation with the offending spouse after the jail sentence.
No-Fault Divorce Grounds
The most common ground for divorce in Virginia is the “no-fault” ground. This does not mean that one or both of the parties do not bear some responsibility for the breakdown of the marriage. Instead, the divorce is requested based on the parties living separate and apart for a specific period of time. Many people get divorced under “no-fault” grounds because they may not have the evidence required to meet the requirements of the fault grounds, or they do not want to “air dirty laundry” about their marriage in the courts.
The “no-fault” ground is statutorily defined as the spouses living separate and apart without cohabitation or interruption for one year or more. This one-year period must have elapsed before a party can file to start the court proceedings. However, if the parties do not have any minor children and have entered into a separation agreement resolving all issues between them, then they may file for an absolute divorce based on only a six-month separation period instead of the full one year. In addition to living separately and apart for one year, at least one of the spouses must have the intention to live separately and apart permanently at the start of the separation period. Courts in Virginia require specific evidence that the parties have lived separate and apart for the statutory period.
The attorneys at Stiles Ewing Powers are experienced in the complexities of divorce and how to assist clients with the application of their unique facts to the law. We are dedicated to providing sound legal advice and support to clients as they face the emotionally challenging aspects of a divorce. Contact Stiles Ewing Powers to meet with a divorce attorney.