Just because you want to file for divorce, does not necessarily mean that you qualify to file for divorce – yet.
In order to file for divorce, you must have a legally recognized ground for divorce.
Virginia recognizes both no-fault divorces and fault-based divorces.
No-Fault Divorces
Virginia will grant a no-fault divorce if the couple has lived separate and apart for the required period of time and at least one of the spouses intends that the separation will be permanent. The intent must exist at the time of the separation, and be continuous throughout the separation period.
The required period of time depends on whether the couple has minor children, and whether there has been an agreement between the spouses that resolves issues arising out of their marriage.
- No minor children. If the couple has no minor children, then either spouse can file for divorce based on a no-fault ground after six months of living separate and apart if they also have an agreement which resolves the issues arising out their marriage. If there is no agreement, then neither spouse can file for divorce on no-fault grounds until the couple has been separated for one year.
- Minor children. If the couple has minor children, then neither spouse can file for a no-fault divorce until they have been separated for 12 months. It does not matter whether or not the couple has entered into an agreement in the meantime; the separation period is still 12 months.
In certain circumstances, couples can satisfy the separation requirement by living separate and apart within the same household or under the same roof. This arrangement requires more than the spouses sleeping in separate bedrooms and abstaining from intimate relations. Other indicators of the separation will be required (for example, establishment of separate households for the purposes of cooking, cleaning, doing laundry, etc.; separate schedules for custodial time with minor children; separate finances; separate vacations and holiday celebrations, etc.).
Fault-Based Divorces
It is also possible to file for divorce in Virginia based upon a fault ground. The main fault grounds in Virginia are adultery, cruelty, desertion and conviction of a felony.
- Adultery. Adultery occurs when a married person has sexual intercourse with another person who is not his or her spouse. Adultery is a misdemeanor in Virginia, which means that proof of adultery must be “clear and convincing.” It is important to understand that adultery that occurs after a couple separates may still provide the other spouse with a ground for divorce based on adultery. There is no waiting period for the filing of a divorce based on adultery grounds.
- A cruelty ground for divorce is usually established with evidence that one spouse treats the other with conduct that renders cohabitation unsafe and/or that involves danger to the other’s life or health. Cruelty usually consists of successive acts, but in some circumstances, a single act could constitute cruelty if it is serious enough. Divorces are not usually granted on cruelty grounds when spouses bicker and/or do not get along, if a spouse uses abusive language and/or is insulting towards the other, if a spouse consumes excessive amounts of alcohol or if there is a denial of sexual intercourse. While there is no waiting period for the filing of a divorce action, the parties must be separated for one year after the last “cruel act” before a divorce can be finalized.
- Desertion. A spouse may be entitled to a divorce based on the grounds of desertion if the other spouse has broken off marital cohabitation, with the intent to desert. A separation by mutual consent will not suffice for a ground for divorce based on desertion. There are certain circumstances where a “deserting” spouse is actually justified in leaving, such as if the spouse leaving has been a victim of cruelty. Like cruelty, there is no waiting period for filing a divorce action based on desertion; however, the parties must be separated for one year after the date of desertion before a divorce can be finalized.
- Conviction of a Felony. A divorce may be granted if one spouse has been convicted of a felony after the date of marriage, sentenced to one year (or more) in prison (and actually imprisoned), and cohabitation has not resumed after the imprisonment. There is no waiting period to file for divorce based on a felony conviction.
There are a few defenses to fault-based grounds for divorce, including connivance, collusion, condonation, recrimination and justification.
- Connivance. Connivance happens when one spouse consents to the marital fault of the other (such as adultery).
- Collusion. A fault-based divorce will not be granted if the spouses collude to fabricate or “make up” evidence. In order to prevent collusion, corroboration is required (see below).
- Condonation. Condonation occurs when the “innocent” spouse forgives the “guilty” spouse for the fault, and resumes the marital relationship with the mutual understanding that the fault will not occur again. In this circumstance, the “innocent” spouse cannot use the “guilty” spouse’s fault against him/her. However, if the fault happens again, the “forgiven” fault can be revived and used as a ground for divorce.
- Recrimination. If both spouses are guilty of fault, recrimination occurs and neither spouse will be entitled to a fault-based divorce.
- Justification. A spouse may be justified in leaving the marriage if the conduct of the other spouse has created conditions that are so bad, that the deserting spouse cannot be expected to stay in the marriage.
Corroboration of Divorce Grounds
Every ground for divorce must be corroborated, regardless of whether or not the divorce is sought on no-fault grounds or fault-based grounds. “Corroboration” usually occurs through the testimony of a third party (such as a family member who can corroborate a separation period, or a private investigator who can corroborate adultery).
The experienced attorneys at Cooper Ginsberg Gray can assist you in determining if you have a ground for divorce and/or if you have a defense to a ground for divorce that is being alleged by your spouse. Visit our website at www.cgglawyers.com or call us (703) 934-1480.