Delegate Patrick Hope of Arlington is the sponsor of a bill in the 2020 Session that will alleviate the inconvenience created by the corroboration requirement in no-fault divorces; HB 1530 has passed in the House and is now in the hands of the Senate Committee on the Judiciary.
Virginia is the only state that requires third-party corroboration for both fault-based and no-fault divorces. Arkansas and South Carolina are the only other states that require third-party corroboration of no-fault divorce; West Virginia and Maryland are the only states that still require third party corroboration of fault grounds.
The corroboration requirement is a stale remnant from the early 20th century, when no-fault grounds for divorce did not exist. Corroboration was required to prevent “collusion” between the parties—so two spouses were prevented from agreeing to fabricate one party’s adultery or abandonment in order to qualify for divorce. Yet, no-fault divorce by definition allows spouses to collude and jointly decide to get a divorce, so there is no longer a need for corroboration.
Most of the requirements for a third-party witness affidavit to obtain a no-fault divorce are absurd and would normally be excluded under evidentiary rules. They must swear:
- That the witness has “personal knowledge that the parties have not cohabitated since the date of separation.” It is impossible for a third party to know this, unless they have resided with one party throughout the separation. This is also inconsistent with the requirement for no-fault grounds in Code § 20-91(A)(9), which is a separation for at least one year.
- That the witness has “personal knowledge that it has been either party’s intention since that date to remain separate and apart permanently. It is impossible to know what another person’s intentions have been for any extended period of time.
- That the wife is not known to be pregnant from the marriage (the witness may not even know the wife).
- That the parties were married on a certain date (regardless of whether the witness even knew the parties at that time).
- That at least one of the parties was a “bona fide resident and domiciliary” of Virginia for at least 6 months prior to the suit (when the witness may not even personally know the party who is a Virginia resident).
- That children were or weren’t born or adopted of the marriage (the witness might have never met any of the parties’ children.)
It often feels like an invasion of privacy for individuals going through divorce to be forced to ask a friend to come to their home and walk around to observe that they are separated—on more than one occasion AND close to the alleged date of separation. Many people simply do not have anyone who qualifies as a witness, not knowing when they separated 1-7 years ago that it was a requirement to finalize their divorce. They end up asking their family members to essentially lie under oath for them
The only reason to keep the corroboration requirement is to make it more difficult for Virginia residents to get divorced. We will be following this legislation closely as it will have a beneficial impact on the families we serve in Northern Virginia. Schedule a consultation today to learn how this potential change will impact your individual divorce situation.