Virginia law requires that either you or your spouse be a resident of Virginia for at least six months prior to filing for divorce. In Virginia, there is both “fault” based divorce, and “no-fault” divorce. In the event a couple does not have children, and the spouses are able to enter into a property settlement agreement, they can file for divorce after being separated for only six months. This is a “no-fault” divorce.
However, if a couple has minor children, they must be separated for a minimum of one year prior to filing for a no-fault divorce, regardless of whether they have entered into a property settlement agreement. In contrast, there is no waiting period that must elapse prior to the filing of a fault based divorce in Virginia.
If certain specific fault grounds for divorce exist, an individual can file for divorce immediately, since there is no requisite waiting period that must elapse before the filing of a fault based divorce. If a couple has been separated for less than one year, the spouse seeking a fault based divorce must allege specific fault based grounds for divorce in order to bypass the one year waiting period applicable to a no-fault divorce. The grounds for filing a fault based divorce must exist before you file.
“No-Fault” Grounds for Divorce in Virginia
The legal ground for a “no-fault” divorce in Virginia is simply the passage of time. So long as an individual has lived separate and apart from their spouse, for at least one year, they can file for divorce. The time begins to run from the date of the parties’ separation, so long as on the date of separation at least one of the parties had the intention to remain permanently separated. If the parties have no children, and have entered into a written property settlement agreement, the period of separation is reduced to six months. However, if a couple has minor children, they must be separated for a minimum of one year prior to filing for divorce, regardless of whether they have entered into a property settlement agreement.
Fault Grounds for Divorce in Virginia
Fault grounds for divorce in Virginia are: adultery, abandonment/desertion, cruelty, and conviction of a felony and imprisonment for over one year after the marriage. When the act of desertion, abandonment, or cruelty have occurred less than 1 year from the filing of the divorce petition, only a divorce “from bed and board” can be granted by a court. When the act occurred more than one year from the filing date a “final” divorce can be sought. The actual grounds for divorce are listed in Virginia Code Section 20-91. A final divorce in Virginia is a “divorce a vinculo matrimonii,” and a divorce from bed and board is a “divorce a mensa et thoro.”
Absolute and Qualified Divorce
Virginia recognizes both absolute and qualified types of divorce. An absolute divorce (a vinculo matrimonii) is the more typical form of divorce. It provides for a permanent dissolution of the marriage, allows for remarriage of the parties, and puts an end to property claims. In contrast, a qualified divorce (a mensa et thoro) only legalizes the separation of the parties and provides for support. This type of divorce is not permanent, does not allow remarriage, and does not necessarily terminate property claims. However, there are valid reasons in certain situations to seek a qualified divorce. A knowledgeable attorney can discuss this in further detail with you, and help you decide option for you based upon the unique facts and circumstances of your case. The attorneys of The Reed Law Firm, P.L.L.C. can help you decide which option is best for you, after a thorough evaluation of the facts and circumstances of your divorce case.
The Divorce Process in Virginia
To begin the divorce process in Virginia, a party files a complaint for divorce with the Circuit Court. After the other spouse is served with the papers, there is a set time to respond to them. In the event the parties agree on issues such as property and debt division, child custody, and child support matters, the divorce can be obtained without going through a contested trial. However, when the parties cannot agree, the court sets a future date for a hearing during which the court will decide the resolution of these issues.
While the most common grounds for an absolute divorce are voluntarily living separate and apart for the appropriate amount of time, other “fault-based” grounds that allow a party to obtain an absolute divorce include the following:
1. Adultery within the past five years.
2. Physical, emotional or mental cruelty with one year of separation.
3. Willful desertion or abandonment for one year.
4. Conviction of a felony and imprisonment for over one year after the marriage.
In the case of a qualified divorce, grounds include:
3. Willful abandonment
4. Reasonable apprehension of bodily hurt
Separation in Virginia
In Virginia, there is no such thing as a “legal separation.” However, in the event a married couple separates, it is highly advisable to live apart pursuant to a Separation Agreement that delineates terms and issues involved in the divorce. The most common ground for obtaining a divorce in Virginia is living separately and apart without cohabitation for a period of one year.
A qualified divorce is similar to what is called a “legal separation” in many states. To read more information on this topic, please see our Family Law Frequently Asked Questions page.
To schedule a consultation in order to discuss the laws applicable to divorce in Virginia, and the application of those laws to your situation, please feel free to contact us. In order to prepare for your family law/divorce consultation, please visit our Preparing for Your Family Law Consultation page, so that we can have the information necessary to best advise you.