In order to obtain a divorce in Virginia, the law requires first that there exist a ground (or a valid reason to file) for divorce and that evidence of same be presented to the Court.
It is with great frequency that we are asked in consultations if spouses can just quickly get a divorce based on “irreconcilable differences,” a term used in some states and quite commonly on the television but not in Virginia. The equivalent and the only “no-fault” ground for divorce in Virginia is based upon evidence that parties have lived separate and apart without any cohabitation and without interruption for the required statutory period.
In cases where spouses have executed a separation agreement and no minor children were born to the marriage or adopted during the marital relationship, a divorce can be granted after a period of living separate and apart for six months. Otherwise, pursuant to Virginia Code, the required separation period is one year.
With that said, a spouse contemplating separation or divorce should not wait the one year period prior to seeking advice from a divorce attorney. Meeting with a lawyer can help you to understand the consequences of a separation and help you make decisions to best protect your legal rights. The lawyers at Mullett Dove Meacham and Bradley, PLLC are prepared to assist you in taking this difficult first step or explain the consequence if your spouse has moved to a separate bedroom or is attempting to establish a separate bedroom in the marital home in order to live separate and apart under the same roof.
Important distinctions in Virginia between the “no-fault” ground of living separate and apart and the “fault ground” of desertion are the consensual nature of the separation and the intention of the party alleged to have abandoned the marriage. In other words, a separation by agreement is not desertion. Desertion requires both a breaking of marital cohabitation and an intention to desert; but, it does not necessarily require that one spouse has left the home as a party can abandon his or her marital duties by his conduct (or non-action or omission) while still residing in the marital residence.
Additional grounds for divorce in Virginia include cruelty and causing reasonable apprehension of bodily harm. The conduct of the offending spouse must render continued cohabitation unsafe or invoke danger to life, body or health. Legal cruelty usually consists of cumulative behavior or an unrelenting disregard. General marital unhappiness or an inability to live together are not normally sufficient.
Divorces based on willful desertion, cruelty, and reasonable apprehension of bodily harm cannot be decreed until at least one year after the date of the offending act and provided the parties have not resumed the marital relationship during this period.
There is, however, no statutory waiting period in cases of adultery proven by “clear and convincing evidence.” Adultery involves a person willfully engaging in intercourse or other sexual acts with someone outside of the marriage. In addition to being a ground for divorce, adultery remains a criminal misdemeanor in Virginia.
The conviction of a felony and a resulting sentence to confinement in excess of one year, with no marital cohabitation after knowledge of the confinement is the only other ground for divorce in Virginia. The withholding of information pertaining to criminal convictions prior to the marriage may be basis for annulment in certain instances but is not necessarily legal justification to pursue divorce.
The experienced attorneys at MDMB can help to explain further the distinctions between no-fault and fault-based divorces and discuss whether the facts of your unique situation meet the elements of each broad cause of action under the law.