Separation & Divorce in Virginia: The Basics

There are 2 types of divorce in Virginia: A Divorce from Bed and Board (a mensa et thoro) and an Absolute Divorce (a vinculo matrimonii).

Definitions

Divorce "from Bed and Board" - a "partial" divorce that allows a husband and wife to be legally separated from each other but does not allow the parties to remarry; may be merged into an absolute divorce after one year; can only be filed on the grounds of cruelty or desertion.

Absolute Divorce or a "divorce from the bonds of matrimony," is a complete divorce that allows the parties to remarry after the divorce is finalized. This is the type of divorce that most people have heard about.

Separation - Virginia does not recognize any other type of "legal separation." Separation consists of living separate and apart from your spouse, and you do not need to file any special paperwork for this. Remember though, that even while living apart, you are still married until a final decree of divorce is entered by the court.

Separation Agreement or "Property Settlement Agreement," (PSA) this is a written, signed agreement between the husband and wife that sets out how matters related to the marriage will be resolved. It may be as simple as stating that the parties wish to separate and have already divided their property, or it could address more complex matters of property division, child support and custody, spousal support, who will live in the marital home, and so on. A PSA can be filed with the divorce-this gives the Court the power to enforce the PSA if necessary in the future. It also allows the parties to proceed with an uncontested divorce.

"Uncontested" - an uncontested divorce can be filed when both parties agree to the divorce and have resolved all issues related to the marriage before filing for divorce (rather than asking the Court to resolve those issues). If the parties have no minor children and a signed PSA, they may file for divorce after a 6 month separation; if they have minor children, they may file after a one year separation. These are the "no-fault" grounds.

"Contested" - a contested divorce exists when the parties do not agree on issues related to the marriage and divorce, such as property division, child custody and support, and spousal support. If they cannot come to an agreement, the parties may ask the Court to resolve these issues as part of the divorce. A contested divorce may be filed on fault or no-fault grounds.

Requirements

To file for a divorce in Virginia, you or your spouse must have lived in Virginia (been a "resident and domiciliary") for at least six months prior to filing. You both must be at least 18 years old.

You must be able to prove to the Court that you have the required grounds for the type of divorce that you are seeking. You must also have a witness (usually a close friend or family member, who is over 18) who has knowledge of the basic facts of your marriage and separation and can also testify that you meet the requirements.

Grounds

In Virginia, a party must have a valid legal basis, or "grounds" before he or she may file for divorce. Grounds for divorce may be based upon the fault of either party, or may be based upon living separate and apart for the time period prescribed by law, also known as "no-fault" grounds. An Absolute Divorce may be filed on the following grounds:

The "No-Fault" Grounds

1. Separation of over One Year-this is a very common ground for divorce. It requires that the parties have lived separate and apart, without any cohabitation or interruption, for a period of at least one year, with the intent that the separation be permanent


2. Separation of over 6 Months-this ground is available only if the parties do not have minor children, they have lived separate and apart for a period of at least 6 months, and they have entered into a written separation agreement.

The Fault Grounds

1. Adultery - when a spouse has engaged in sexual relations with someone outside of the marriage. It must have occurred within the last 5 years, and there must be clear, conclusive evidence that it occurred. You must not have condoned or encouraged the adultery, or continued to live with your spouse after you found out about it. If your spouse can prove that you are also guilty of one of the fault grounds, then they have a defense of "recrimination," and a divorce based on adultery may not be granted.


2. Conviction of a Felony - if your spouse has been convicted of a felony that resulted in confinement in a state or federal penitentiary for more than one year, you may file for divorce on this ground as long as you did not continue to live with your spouse after you found out about the confinement.
   
   A party may file for an absolute divorce based on adultery or conviction of a felony at any time after separation-there is no required waiting period for these grounds.


3. Desertion - willful desertion occurs when a spouse both breaks off the marital cohabitation (i.e. leaves your marital home) and does so with the intent to desert the marriage. If you and your spouse mutually agree to separate, then that is not desertion. If a spouse leaves because the other spouse has committed abusive acts that legally qualify as cruelty, then they are not guilty of desertion. In fact, they may file for divorce on the ground of cruelty or "constructive desertion," meaning that they were forced to leave due to the other spouse's cruelty.


4. Cruelty - this consists of acts of abusive behavior that cause a spouse to fear for their life, health, or safety, and make living together in the marital home unsafe. Divorces based on cruelty usually require more than one act that causes or could cause bodily harm, and not just mental cruelty, but if a spouse fears for their physical or mental well being, then the act may be enough to constitute legal cruelty.
   
   A party may file for a divorce from bed and board based on desertion or cruelty immediately after separation, and the divorce can be merged into an absolute final divorce after one year.

An uncontested divorce includes the following steps:

1. An initial consultation to discuss the case and review any existing separation agreements, PSA's, court orders, marriage certificates, or other relevant documents.
2. The preparation and filing of a Complaint for Divorce and accompanying forms; the preparation of a proposed Final Decree of Divorce
   (a) If your spouse is willing to cooperate, we send the Complaint and proposed Final Decree for him or her to review, with a waiver form to sign in front of a notary to waive future service or notice.
   (b) If a spouse will not sign a waiver, then a copy of the Complaint can be served by the sheriff or a private process server, and it may be necessary to notify him or her of when a hearing, depositions, or entry of a final divorce decree will take place.
3. Once service requirements are met, we prepare the proposed Final Decree of Divorce and any other documents (name change order, PSA, forms) for filing; we also prepare deposition questions to be asked of you and your witness.
4. We offer the option for you and your witness to schedule a time for depositions in our office rather than having to attend a court hearing-hours are flexible and we can work with your schedule. We then take your depositions, where we ask you each questions under oath, and finalize the transcripts to be filed along with the proposed Final Decree
5. The Final Decree, deposition transcripts, and other documents, if applicable, are filed with the Court. The judge will review everything and if there are no issues, will sign the Final Decree-once the judge signs it, the divorce is final.

Please contact us to schedule your initial consultation: