Virginia men’s divorce attorneys provide answers to frequently asked questions about the divorce process and divorce laws in Virginia.
What are the grounds for divorce in Virginia?
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.
What is a divorce going to cost me? Can I afford it?
When you are getting a divorce, you will most likely have to pay for attorney’s fees and court filing fees. Depending on the facts of your case, the court may order you to pay spousal support (alimony), child support, or other money to your spouse to divide your property. Courts in Virginia are also authorized to order you to pay a portion, or all, of your spouse’s attorney’s fees depending on the relative financial abilities of each party and certain facts in your case.
One of the issues that can affect the cost of a divorce is whether you and your spouse are agreeable to issues concerning the custody of your children, child support, spousal support, and the division of martial property and debts.
Do I really need to hire an attorney?
While you are not required to have an attorney, you will be held to the same standards, rules, and procedures that attorneys have to follow and you will not be given any special treatment or assistance in the courtroom. You will be required to know and understand all of the applicable statutes and case law, rules of evidence, and the specific court’s rules.
Does Virginia grant divorces based on marital fault?
Yes. Desertion, cruelty, adultery, and felonies with confinement of at least one year are all fault-based grounds for divorce. The only non-fault ground in Virginia is living separate and apart for one year (or six months if you have no minor children and have signed a Property Settlement Agreement). The reason for dissolution of the marriage is also a factor that must be considered by the Court in deciding property division.
Can I get maintenance or will I have to provide maintenance to my spouse?
Spousal support can be awarded pendente lite (during the divorce action) and temporarily or permanently.
For pendente lite support, the Court is required to consider the need and ability to pay of each spouse. In some jurisdictions, the Court may use a formula for pendente lite spousal support. For temporary or permanent spousal support, Courts are required to consider a number of factors before awarding spousal support based on the current situation and facts of the parties, not on speculation of future needs or income, but the need and ability to pay is a consideration.
Can I change my name at the time of divorce?
Yes, the Court has the power to restore a spouse’s last name to her former or maiden name.
Can I get an annulment?
Yes. Under limited circumstances an annulment may be granted.
An annulment is a decision by the Court that the marriage was not legal from the beginning. Annulments may be granted in situations where one spouse was still legally married to another person, marriages between persons who are close relatives, marriages of persons under the statutory age, insanity and mental defect, fraud, duress and coercion, sham or joke marriages, conviction of a felony prior to marriage without knowledge of the other, or at the time of the marriage the wife, without knowledge of the husband, was pregnant with someone else’s child, or a father had a child born to another woman within 10 months after the date of the marriage.
When can I file for divorce?
You or your spouse must have lived in Virginia for more than six months and intended for Virginia to be your permanent residence before filing your Complaint for Divorce.
When is my case going to be over?
When your case will be over depends on what type of case you have.
If you have been living separate and apart for more than one year and have a signed Property Settlement Agreement, or if you have been living separate and apart for more than six months and have no minor children and have a signed Property Settlement Agreement, you have an uncontested divorce and the process can take as little as one month.
If you do not have an uncontested case, divorces will take more time. How long will depend on the specific facts and circumstances of your case. Anything that cannot be agreed upon by you and your spouse will be resolved by a judge. Attorneys will need to complete discovery to gather and exchange information related to custody, visitation, and your marital property and debts.
Depending on which county your case takes place in, the Court will schedule Term Day or a Scheduling Conference to set a trial date(s). If there are still unresolved issues on the trial date, the parties will be allowed to present their evidence and make arguments, and the judge will decide the remaining issues.
Do I have to go to Court?
That depends. If you have an uncontested divorce and your spouse signs a Waiver of Service of Process form, you and a corroborating witness (family member or friend familiar with your living situation) will come to our office to sign affidavits to verify that you and your spouse have been living separate and apart for the required amount of time and that you and/or your spouse have lived in Virginia for at least six months.
Then the Waiver of Service of Process Form, affidavits, Final Decree of Divorce, and signed Property Settlement Agreement would be submitted to the court for review and entry by a judge. No court appearances are necessary under this scenario.
If attempts to serve my spouse do not work, what is my next step?
In Virginia, there are four ways to serve your spouse: (1) have a copy of the Complaint served on your spouse in person; (2) deliver a copy of the written Complaint to someone who resides at the same residence as your spouse; (3) posting a copy of the Complaint to your spouse’s front door of their residence; and (4) service by publication.
Service by publication is not proper unless the first three types of service are unsuccessful, your spouse is not a resident of Virginia, or efforts to locate your spouse have been unsuccessful. The publication must run once per week for four consecutive weeks.
At what point during the process can a spouse remarry or start dating?
If your divorce is not finalized, you are free to date but you should consult with your attorney to discuss any implications that may have on your case. After your Final Decree of Divorce is signed by a judge, your divorce is final. However, you must wait at least 30 days before getting remarried so that the deadline to appeal has lapsed. Bigamy is a criminal offense and can be a felony or misdemeanor in Virginia.
What if my spouse does not want the divorce?
Even if your spouse does not want a divorce, if you have a fault-based ground or have been living separate and apart for the required time period, you can still obtain a divorce.
Do the other issues – support, custody, alimony, and property – have to be decided before the divorce is final?
Yes. The Final Decree of Divorce must resolve and address custody and support of the minor children (if there are any), spousal support/alimony, and the division of the marital property and debts.
How long do I have to live in Virginia to obtain a divorce?
You or your spouse must be a resident and domiciliary of Virginia for more than six months. This means you or your spouse must not only have been residing here, but also intending to make Virginia your permanent residence.
After I file for divorce, do I have to continue to live in Virginia?
There is no legal requirement that you continue to live in Virginia after you file for divorce; however, you must remain involved in your case and court appearances may be required.
If you have minor children, moving to another state while your divorce is pending can make the Court’s custody and visitation decisions much more complicated. After your divorce is finalized, if you have minor children, you and your spouse will be required to give the other party and the Court at least thirty days’ advance notice of any intended relocation in writing.
If you are the custodial parent and wishing to relocate with the children, your former spouse will have the opportunity to file a motion with the Court to prevent you from relocating the children and the court will determine what is in the children’s best interests. The relocating parent will have to prove (1) that the relocation offers an independent benefit to the child(ren) and (2) that the relocation does not substantially impair the relationship between the non-relocating parent and the child.
If you are the non-custodial parent and wishing to relocate, you should consider what impact your relocation will have on your visitation schedule. If it is a material change in circumstances, your former spouse could file a motion to modify visitation based on your move and the logistical impacts on visitation.
What if I am in the military and out of state?
You or your spouse may file a divorce at any time if you or your spouse meets the residency requirements and grounds for divorce. However, the case can be stayed for a brief period of time while you are on active duty. The Court will put the case on hold and not take any action on the issues of child custody, child support, spousal support (alimony), or division of marital property or debts.
What forms do I need to file a divorce?
You should consult with an attorney who handles divorce cases.
How and where is a divorce complaint filed?
A Complaint for Divorce is filed at the Circuit Court Clerk’s office in the county courthouse where either you or your spouse resides.
How do I serve the divorce complaint on my spouse? How long do I have to wait to receive my divorce?
After your Complaint is filed, a copy of the Complaint and a Summons will be served on your spouse by the sheriff or a private process server. Once service is completed, an Affidavit of Service will be filed with the clerk to verify that the Complaint was served.
How is a divorce granted? Will I have to go to court?
Only a judge may grant your divorce.
Whether or not you will have to go to court depends on what type of case you have. If you have an uncontested divorce, it is possible that no one will have to appear in court and you and a corroborating witness can complete affidavits at our office. If you have a contested divorce, you will have to go to court and a judge will decide any unresolved issues.
There are opportunities for a partial or complete resolution to settle the issues in your case without going to trial. These may include mediation and informal negotiations.
What typically happens if I go to court to obtain my divorce myself?
You will be held to the same standards and rules as an attorney. The judge will expect you to know the applicable case law, rules of evidence, and court rules.
How do I prove fault for divorce?
Proving Adultery: Virginia law requires “clear and convincing” evidence for a finding of adultery. You will have to provide the judge with clear and convincing evidence that your spouse had sexual intercourse with another person.
Virginia law also requires corroboration of the adultery, meaning evidence or testimony from another source. This cannot be your spouse’s own admission. Eyewitness testimony or circumstantial evidence such as text messages, emails, love letters, photographs, etc., may be used.
Proving Cruelty: Generally, to prove cruelty you will need to show some type of physical assault or threat of violence. This may be shown through police reports, photographs, medical reports, witnesses, etc. Corroborating evidence is required.
Proving Desertion: To prove desertion, you will have to show that one spouse left the marital residence without reason or justification and without the intent to return to the marriage. Corroborating evidence is required.
Proving Separation: You will need a corroborating witness to testify to how long you and your spouse have been living separate and apart, how they learned of your separation, and that there is no chance of reconciliation.
At any time can a parent change a minor child’s last name without the other parent’s permission?
No. If parents do not agree on changing a child’s last name, then a hearing would be held. The name change will be granted unless it is for a fraudulent purpose, will result in infringement of another’s rights, or it is not in the child’s best interests.
Can a couple become legally married by living together as man and wife under Virginia’s laws (common law marriage)?
No, Virginia does not have common law marriage.