Virginia divorce laws require at least one spouse to have lived in the state for the last six months in order to file a “no fault” divorce in VA. If the couple does not have any children under the age of 18, have been living in different households at least six months, and have both signed a separation agreement, they can legally file for divorce after six months of separation. If the couple does have children that are minors, they must wait a minimum of one year to file after separating.
There are two types of divorce in Virginia, a divorce from bed and board (a mensa et thoro) and a divorce from the bonds of matrimony (a vincula matrimonii).
When a divorce from bed and board is granted, a husband and wife are legally separated from each other but are not permitted to remarry. When a divorce from the bonds of matrimony is granted, the divorce is complete and absolute. Either party that is granted a divorce from bed and board may ask the Court to “merge” the decree into a divorce from the bonds of matrimony after at least one year from the date of separation.
In Virginia, you must have a ground or grounds for divorce and the party seeking the divorce must prove the ground(s) to the Court. The grounds for a divorce from bed are: (1) willful desertion or abandonment, and (2) cruelty and reasonable apprehension of bodily harm.
The grounds for a divorce from the bonds of matrimony are: (1) living separate and apart for one year (or six months where there are no children and the parties have entered into a Property Settlement Agreement), (2) adultery, sodomy, or buggery, (3) conviction of a felony, (4) willful desertion or abandonment after a one year period, and (5) cruelty and reasonable apprehension of bodily harm after one year from the date of the cruel acts.
Willful desertion or abandonment: desertion is a breaking off of the marriage cohabitation and the intent to desert is required. If one spouse leaves the marital home because the other has committed acts that amount to cruelty, then the spouse that leaves is not guilty of desertion. That spouse may actually have grounds for a divorce based on cruelty or constructive desertion. If you have grounds for desertion, you may file for a divorce from bed and board immediately after the separation begins and once you have lived separate and apart from more than one year, then desertion is sufficient to constitute a ground for divorce from the bonds of matrimony.
For a divorce from the bonds of matrimony, desertion requires showing a willful separation by one spouse without cause or justification and intent to remain separate and apart for one year. Desertion does not always require one party to leave the marital home; it can be proven if one spouse completely abandons his or her marital duties to such an extent that the marriage is intolerable and impossible to continue.
Another aspect of desertion is constructive desertion. Constructive desertion is a ground for divorce that requires the spouse leaving the marital home to show that the conduct of the other amounts to a ground for divorce, such as cruelty.
Cruelty and Reasonable apprehension of bodily harm: Cruelty requires acts that generally cause bodily harm and make living together unsafe. Mental anguish, repeated and unrelenting neglect, and humiliation can rise to the level of cruelty but it must be so serious that it makes the marriage intolerable. Usually, mean or rude words alone will not constitute grounds for divorce. One act of violence is generally not considered a ground for divorce unless the act was so atrocious as to endanger life, or it caused reasonable apprehension of danger in the future.
As with willful desertion or abandonment, if you have cruelty grounds for divorce you may file for divorce from bed and board immediately after separation. Once a year has passed from the date of the act of cruelty, you may ask the Court to merge the divorce into a divorce from the bonds of matrimony.
Separation: If you and your spouse have been living separate and apart, without any cohabitation and with the intent that the separation remains permanent, for more than one year, you can be granted a divorce from the bonds of matrimony. If you and your spouse do not have children, or no minor children, and have entered into a Property Settlement Agreement that resolves all property, support, and other issues, then the time period required before filing for divorce is reduced from one year to six months.
Adultery, sodomy, or buggery: In Virginia, adultery is a misdemeanor and it constitutes grounds for divorce. Adultery occurs when a married person has voluntary sexual relations with any person that is not his or her spouse. Proof of adultery is strict, satisfactory, and conclusive that the other spouse did have sexual relations with another person and there must be corroboration of the evidence.
Sodomy is a sexual act, other than intercourse, and to constitute grounds for divorce, it must be committed with someone other than your spouse. Buggery is bestiality or another sexual act against nature. For sodomy and buggery, strict, satisfactory, and conclusive proof is required.
Conviction of a felony: If a spouse has been convicted of a felony and sentenced to prison for more than one year, and is in prison, then a ground for divorce based on conviction of a felony exists. Parties cannot continue cohabitation after one spouse learns of the other’s confinement.
There are defenses to the grounds of adultery, sodomy, or buggery. If a defense is successfully proven, then no divorce will be granted on these grounds. The defenses to adultery, sodomy, or buggery are as follows:
- Condonation: One party voluntary resumes sexual relations and continues living together after the innocent spouse learns of the fault of the other spouse. However, if the offending spouse commits another act that gives rise to grounds for divorce, the prior condonation will not be a defense.
- Connivance/Procurement: The innocent spouse encourages or sets up the other spouse to create a fault-based ground for divorce.
- Recrimination: Proof that the accusing spouse is also guilty of one of the fault-based grounds for divorce.
- Time-barred: The adultery must have occurred within five years from the date of the filing of the Complaint for Divorce.
- Justification: The spouse filing for the divorce treated the spouse who deserted the marital house so terribly that the leaving spouse could not have reasonably been expected to continue living in the home.
- Res Judicata: If the spouse filing for divorce has tried to file for divorce on the exact grounds as the current divorce and failed, the second suit will be dismissed.