Grounds for Divorce in Virginia
The grounds for divorce are as follows:
a. A Separation of 6 months, if the parties have no minor children AND have entered into a Separation Agreement
b. A Separation of 12 months (no-fault);
c. Adultery, Sodomy, or Buggery;
d. Felony Conviction and Confinement;
e. Cruelty, or causing reasonable apprehension of bodily hurt,” after a period of 1 year from the date of the acts; and
f. Willful desertion or abandonment, after a period of 1 year from the date of the act.
No-Fault Divorce One of the most common questions in learning about divorce in Virginia is whether or not Virginia is considered a no-fault state. The simple answer is “yes.”
The easiest way to describe “no-fault” is to discuss the term in ways many other jurisdictions do…namely by referring to is as “irreconcilable differences.” In other words, in cases where the parties do not want to prove a fault-based ground (such as adultery, cruelty, among others), one or both of the parties can proceed in a divorce action and ultimately be granted a divorce on a “no-fault ground.” In order to be granted a divorce on this basis, the parties need to be separated for a specific period of time and with the intent that the separation be permanent.
If there are no children and the parties have entered into a Separation Agreement, then the Separation Period only needs to be six months before the parties will be granted a divorce on this basis.
If there are minor children involved or if the parties have not entered into Separation Agreement, then the Separation Period must be minimally one-year.
Adultery, Sodomy, Buggery Adultery refers to any married person voluntarily having sexual intercourse with any person who is not his or her spouse.
Sodomy grounds take place when any married person voluntarily engages in oral or anal sex with someone who is not his or her spouse.
Buggery refers to sex with animals.
While other grounds for divorce may be proven by a mere preponderance of the evidence (a more-likely-than-not standard), these sexual misconduct grounds require clear and convincing evidence. The proof must be clear, satisfactory, and conclusive in the eyes of the court. As with all divorce grounds, testimony or admissions must be corroborated. This means that the proof in front of the court must be some definitive evidence beyond mere suspicions or admissions by your husband that he had an affair. Specific evidence supporting allegations is particularly important in law suits brought on the ground of adultery.
It is important to note that if your spouse has an affair and you then engage in sexual intercourse with him or her after learning of the affair, you have just “condoned” the adultery in the eyes of the law. This is known as “condonation” and it basically means that you have just restored marital rights to your spouse after he or she committed an action that would have been a ground for divorce.
This means that the ground of adultery may no longer be available to you as a fault-based ground for divorce and absent any further adulterous behavior or any other fault-based ground, you may be stuck waiting the 12-month separation period in order to file a “no-fault” based divorce.
There are several other issues associated with the ground of adultery and you should consult an attorney in the event you wish to file a divorce based on this ground. There are benefits and risks associated with filing a case on this basis and it can get complicated. To name one benefit in particular, it is possible to file a divorce action against your spouse without any waiting period – provided there is clear and convincing evidence. On the other hand, if you wait, one risk is that there is a 5-year statute of limitation that can pose problems down the road. Another issue to know about is that a cheating spouse may be denied any spousal support by the court. Therefore it is important to discuss this thoroughly with an attorney.
Felony Conviction and Confinement A divorce due to a felony conviction is possible if your spouse is indeed convicted of a felony, sentenced to confinement for more than 1 year, and confined following the court's decree. The person filing for divorce due to a felony conviction must not cohabit with his or her spouse after learning of the confinement or this ground is no longer feasible.
Cruelty A divorce may be granted based upon cruelty or reason able apprehension of bodily hurt after 1 year has elapsed since the acts complained of. Acts of physical violence and conduct that endanger the life, safety, or health of the plaintiff constitute cruelty. Abusive language, humiliating statements, and repeated neglect can also constitute cruelty. While cruelty is often shown by a succession of acts, a single act of cruelty is sufficient if it is a very serious act. Where a spouse drinks alcohol to excess, cruelty is not shown unless it is coupled with other acts that constitute misconduct.
The courts will distinguish between normal conduct of unhappy people and cruel conduct on the part of one of the spouses. Because of the available option to the court to declare a no fault divorce based on a 1-year separation, many of our clients file on cruelty, but few divorces are actually ultimately granted on the grounds of cruelty. More often than not, the court or the parties will opt out for a 1 year separation no-fault divorce, either because they negotiated a Separation Agreement or because they don’t want to spend the substantial money necessary to put on a fault ground divorce.
Willful Desertion or Abandonment A divorce may be granted on the ground of willful Desertion or Abandonment after 1 year has elapsed since the alleged act. There must be proof of (i) the actual breaking off of the matrimonial cohabitation and (ii) an intent to desert in the mind of the offender. Both are required. Desertion does not occur when the husband and wife mutually consent to a separation. Quite simply, desertion requires proof that a party has left the marital home with the intent not to return. This intent may be proven by actions, words, or conduct.
Constructive Desertion Constructive Desertion is a complex legal term referring to various ways a spouse may dishonor his or her marriage. Constructive Desertion may be found when a spouse refuses to engage in sexual intercourse, without justification, and other significant marital duties are not fulfilled. Constructive Desertion can also be present when the actions of your spouse are so adverse to the welfare of your family that you are, in essence, forced to leave the marital residence for your safety and well-being. However, consult with an attorney before alleging this ground for divorce as it, too, requires legally admissible “proof.”
What difference does it make what ground I choose to file for Divorce? Some folks wonder if it matters what ground they choose to file for Divorce and others wonder if it matters whether or not they are the first to file before their spouse.
Whether you are the first to file for divorce does not mean you will win or lose your case merely because of the fact you filed for divorce first. It will mean something procedurally in that the first person to initiate the lawsuit is the Plaintiff and the person answering the Complaint will be the Defendant. It can mean that one person gets to present evidence before the other as well. However, if one side has really good evidence, then there is likely no major advantage to filing first – though the person with the good evidence will likely want to file first.
As for the grounds for divorce, the fault based grounds can be important. With a fault-based ground, you may be able to get into the Circuit Court much quicker than waiting the 6 or 12 months to elapse prior to initiating a no-fault divorce. If you do not have a fault-based ground to assert and you have not been separated the requisite amount of time for a no-fault divorce case, you may have to file in the Juvenile and Domestic Relations Court for temporary support – and this can also have delay implications.
Again, it cannot be stressed enough to discuss this with an attorney to figure out the best strategy and to minimize the waiting times to proceed in your case – whether it be for a divorce or temporary custody/support.
There are many things to consider when initiating a divorce case against your spouse. There are issues of timing, child support, spousal support, property division (equitable distribution), military benefits, healthcare and insurance, among dozens of other things. How you file for divorce can also impact how quickly you can file for a temporary support hearing as well. On top of all of that, it is certainly understandable that this is a stressful and emotional time, and not just for you, but potentially for your children as well. None of this should be taken lightly and strategizing with an attorney first can certainly minimize potential road blocks and delays later.