Divorce laws are complex at best and are vastly different from state to state. When seeking a divorce, it is important to know what you will have to do, the length of time that needs to past, and any evidence you need to gather before the divorce can be granted. In some states, you can be completely divorced in six months, while others require more than a year of separation before the divorce can be granted. Virginia is no different and has its own laws regarding divorce.
To start off, there are two types of divorce in Virginia:
- Divorce from bed and board
- Divorce from the bonds of matrimony
A divorce from bed and board indicates the couple is still legally married, but are classified as separated. A divorce from the bonds of matrimony indicates the divorce is absolute and final.
Any couple who has been granted a divorce from bed and board can request a divorce from the bonds of matrimony after being legally separated for one year.
You must have appropriate grounds to obtain either type of divorce in Virginia.
What are the grounds for divorce in Virginia?
The two possible grounds in Virginia for a divorce from bed and board are willful desertion or abandonment, and cruelty or reasonable apprehension of bodily harm.
The grounds for a divorce from the bonds of matrimony also include willful desertion and cruelty or reasonable apprehension of bodily harm, in addition to separation, adultery, sodomy, or buggery, and the conviction of a felony.
Willful Desertion or Abandonment
Desertion is characterized by one party breaking off the marriage cohabitation (most often this means moving out) with intent not to rejoin the marriage home. Anyone with grounds for desertion in Virginia can file for a divorce from bed and board immediately, and once you have lived separately from your spouse for one year, there are grounds for a divorce from the bonds of matrimony.
In order to obtain a divorce from the bonds of matrimony on the grounds of willful desertion or abandonment, desertion requires a willful separation by one spouse without cause or justification and remaining separated for one year. For the purposes of a divorce in Virginia, one party does not necessarily have to leave the marital home; there may be grounds for desertion if one spouse can prove the other spouse has completely abandoned their marital duties to the extent that the marriage is intolerable.
There is also constructive desertion, which means that the spouse leaving the marital home is able to produce evidence that the conduct of the other party amounts to grounds for divorce, such as cruelty.
Cruelty or Reasonable Apprehension of Bodily Harm
Cruelty refers to actions that cause bodily harm and make living together unsafe, such as repeated and frequent physical abuse.
Mental abuse, neglect, and humiliation can qualify as cruelty, but they must be extremely severe, enough for the marriage to be deemed intolerable. Mean or rude words are not typically grounds for divorce in Virginia.
One act of violence is also not usually grounds for a divorce unless the act of violence was so extreme as to endanger the life of the victim.
If you have cruelty grounds for divorce, you can file for a divorce from bed and board immediately, and after living separately for one year, you can file for divorce from the bonds of matrimony.
Separation
If you and your spouse have been living separately for more than one year, with no cohabitation and no intent to reunite, you can obtain a divorce from the bonds of matrimony in Virginia, even if you do not have a divorce from bed and board. If you and your spouse have no children, or if all your children are over the age of 18, that period shortens from one year to six months.
Adultery, Sodomy, or Buggery
In Virginia, adultery is a misdemeanor and occurs when one party has voluntary sexual relations with someone other than their spouse. There must be clear and conclusive evidence that adultery did occur to constitute grounds for divorce in Virginia.
Sodomy is a sexual act other than intercourse and must be committed with someone other than your spouse to be a valid grounds for divorce.
Buggery is a sexual act that goes against nature, such as bestiality. For both buggery and sodomy, strict and satisfactory evidence is required for there to be valid grounds for divorce in Virginia.
There are defenses against adultery, sodomy and buggery. If any of these defenses can be proved, the divorce will not be granted on these grounds. These defenses are:
- Condonation. If one party resumes sexual relations with their spouse after learning about their marital fault, the divorce will not be granted. However, if after condonation has occurred, the spouse commits the marital fault a second time, condonation is not a valid defense.
- Connivance/Procurement. The spouse requesting divorce is proven to have set up their spouse to commit marital fault.
- Recrimination. Proof that the accusing spouse is also guilty of any marital fault that is grounds for divorce.
- Time-barred. The adultery must have occurred within five years from the date of the filing for the Complaint of Divorce.
- Justification. The leaving spouse can prove that the accusing spouse’s conduct made the marriage intolerable.
- Res Judicata. If the accusing spouse has filed for divorce on the exact same grounds in the past and failed, the second case will be dismissed.
Conviction of a Felony
If one spouse has been convicted of a felony and received a sentence of more than one year, then conviction of a felony becomes grounds for divorce. For these grounds to be valid, cohabitation cannot continue after one spouse learns of the other’s confinement.
Can I be granted a divorce based on marital fault?
Yes. Adultery, cruelty, desertion, and conviction of a felony are all fault-based grounds. The only non-fault based grounds for divorce in Virginia is separation, though there does still need to be proof that separation occurred.
How do I prove there are grounds for divorce?
Adultery
A judge will need clear and convincing evidence that the adultery occurred. Corroboration is also required, meaning someone else needs to testify that your spouse had sexual intercourse with another person. Your spouse’s confession does not count as corroboration, but incriminating texts, emails, or letters can.
Cruelty
Being granted a divorce in Virginia on grounds of cruelty requires evidence of physical harm or threats of violence. Police reports, photographs, medical reports, and witnesses can serve as proof of cruelty.
Desertion
You will need to show that one spouse left the marital home without reason or justification with no intent to return. Corroborating evidence is required.
Separation
Though separation is not considered a marital fault, you will still need a witness to testify the length of time the separation has lasted, and that there is no chance of reconciliation between you and your spouse.
What is the cost of a divorce in Virginia?
You will be responsible for attorney’s fees and court filing fees. In Virginia, depending on the financial status of each spouse and the specifics of the case, one spouse may also be responsible for paying some or all of their spouse’s attorney’s fees.
You may also be liable to pay alimony or child support to your spouse, depending on the situation.
Can I get maintenance from my spouse, or will I have to provide maintenance to them?
Maintenance can be awarded during the divorce action, and it can be awarded temporarily or permanently. Courts are required to take into account the financial abilities of each spouse before deciding any action regarding maintenance. For instance, if one spouse has remained at home unemployed for years, while the other spouse worked, the spouse who is unemployed will likely not be required to provide maintenance to their working spouse.
Child support required is also taken into account during a divorce and is judged on a case-to-case basis.
When can I file for divorce in Virginia?
You or your spouse must have lived in Virginia for six months, with intent to live there permanently, before you can file for divorce in Virginia.
What happens if my spouse cannot be served?
Once you have filed your Complaint, your spouse will be served with a copy of the Complaint and a summons. In Virginia, there are four methods for serving your spouse:
- Service in person
- Service in writing to your spouse’s residence
- Service by posting the Complaint on your spouse’s front door
- Service by publication
Service by publication is a last resort method and is only appropriate if the first three methods are unsuccessful, if your spouse is not a resident of Virginia or your spouse cannot be located by reasonable means. If all of these methods are employed and your spouse does not respond, the divorce will be classified as uncontested.
What happens if my spouse doesn’t want a divorce?
If you have a fault-based grounds for divorce in Virginia or if you have been living separately from your spouse for the required time period, it does not matter if your spouse wants the divorce or not.
Will I have to go to court?
In a contentious divorce (i.e. if you or your spouse contest some or all of the terms of the divorce), yes.
If your divorce is not contested by you or your spouse, and your spouse signs a Waiver of Service of Process form, you will be asked to come to the courthouse with a corroborating witness. This is usually a family member or close friend. You and your witness will sign affidavits that you have not lived with your spouse for the required amount of time and that you or your spouse have lived in Virginia for six months. No court appearance is necessary in this scenario.
When will my divorce case be over?
In an uncontested divorce where the spouses have lived apart for the required period of time and have signed a Property Settlement Agreement, the process can take as little as a month.
In a contested divorce, it can be more complicated. Anything you and your spouse cannot agree on will have to be decided by the judge. Attorneys will need to gather evidence regarding custody, marital property, and debts.
Depending on the county, the Court will usually set a trial date. Ideally, the terms of the divorce will be decided on by this day. If there are any issues still undecided by the time of the trial date, both parties will present their case, and the judge will decide.
The laws surrounding divorce in Virginia, and in any state, are highly complex and individualized, and the most important thing is having a lawyer you can trust. If you have questions about divorce or intend to file for divorce in Virginia, arrange a consultation with us at the Manassas Law Group by calling 703-361-8246.
