We decided to take a look at Virginia – home to the oldest judicial system in America and Trustify HQ – to see what divorce entails here.

How Can I End My Marriage in Virginia?

Residents in Virginia can end their marriages either through Divorce from the Bond of Matrimony or Divorce from Bed and Board.

Divorce From the Bond of Matrimony

This is what is colloquially known as a full or complete divorce. Dissolving the marriage through a divorce in which you live separately and are allowed to remarry is known as Divorce from the Bond of Matrimony. This is an absolute divorce in which you need to provide grounds (reasons) for the divorce.

Divorce From Bed and Board

This is Virginia’s closest thing to "legal separation." Because there is no “separation” granted by the courts in Virginia, couples can instead file for a Divorce from Bed and Board. Also called a limited divorce, the couple lives separately, but cannot remarry. Divorce from Bed and Board requires grounds, which include:

  • Cruelty or excessively vicious conduct to complainant or minor child
  • Desertion
  • Voluntary separation beyond any reasonable expectation of reconciliation

The court can also “merge” a Divorce from Bed and Board into a Divorce from the Bond of Matrimony if they meet the terms of a separation agreement:

  • A year has passed since the event that led to filing the Divorce from Bed and Board (or six months if there are children under 18 years old)
  • The couple have been lived separate from each other without interruption during that period
  • There is no chance for reconciliation

Annulment

Virginia allows couple to file for an annulment, which means the marriage is voided, as if it never existed. Annulment is the rarest and most difficult way to end a marriage. You must have grounds to file for annulment, which are as follows:

  • Bigamy
  • Incest
  • Incompetence (one of the parties wasn’t mentally able to understand the terms of the marriage)
  • Fraud
  • Impotence (one spouse is unable to engage in sexual relations)
  • One spouse is under the legal age to be married (which is 18, as of 2016)
  • One spouse didn’t tell the other they were a prostitute or convicted felon
  • There is a child by another person (for example: a wife is pregnant by another man at the time of marriage or a husband has a child by another woman within 10 months of marriage)
  • Duress (one spouse only married because of force or fear of serious harm)
  • Sham marriage (reasons for the marriage were beyond the normal purposes)

No-Fault Divorce

A No-Fault divorce from the Bond of Matrimony is possible with some conditions. In this case, a no-fault divorce is one where both parties want to and agree to end the marriage. To get one in Virginia, you must have entered into a separation agreement prior to this that meets the following conditions:

  • A year has passed since the event that led to filing the Divorce from Bed and Board (or six months if there are children under 18 years old)
  • The couple have been lived separate from each other without interruption during that period
  • There is no chance for reconciliation

Fault Divorce

Fault divorce from the Bond of Matrimony is also possible in Virginia, although it requires grounds. A fault divorce in Virginia means one or both parties engaged in behavior harmful to the marriage – the grounds for divorce.  

What Are the Grounds for Divorce in Virginia?

There are five main grounds for fault divorce in Virginia. One or both parties must be able to prove at least one of the following:

  • Adultery, sodomy or buggery.*
  • If either party has been convicted of a felony, sentenced to a significant time in jail, and then fails to rejoin cohabitating with their spouse after release.*
  • Cruelty, or abandonment for more than a year. (A divorce can be granted to the innocent party after a year.)
  • Divorce from Bed and Board.
  • Desertion (your spouse moved out without a good reason) and constructive desertion (your spouse forced you to leave).

*You do not need the separation agreement waiting period for divorce if these are the grounds

How Can I Prove My Grounds?

Official or court records can be used to prove the conviction of a felony. They can also be used to prove a Divorce from Bed and Board happened.

Proving desertion is a bit trickier. You must be able to prove

  • Your spouse has been absent from the marital home, with the intention of ending the marriage
  • You are not at fault to justify the abandonment
  • Your spouse left against your wishes

Witnesses can vouch for you, or if there is evidence (i.e. utility bills in your name) that can help prove the desertion.

Cruelty can be either emotional and physical in nature, and must have occurred within five years of the filing. These incidents could be:

  • Evidence of a succession of acts
  • A single act of cruelty (if severe enough)
  • Being afflicted with a sexually transmitted disease
  • Repeated yelling, screaming, or displays of rage
  • Constant criticizing of a spouses abilities as a homemaker, parent, spouse, or breadwinner
  • Publicly displaying a relationship with another person

Adultery is defined by Virginia Code §18.2-365 as a “married person voluntarily engaging in sexual intercourse with a person not his or her spouse.” The commonwealth is very specific in what is considered “sexual intercourse” as it refers to adultery, so it’s worth having that clear understanding.

Proving adultery can affect the amount for child custody and alimony awarded if it is proven the extramarital affair affected the children. It can also be taken into consideration equitable distribution (more later).

The evidence for adultery must be clear and convincing. There are many ways to prove adultery, including:

  • Corroborative witnesses, such as a mutual friends or neighbors, who have no stake in the matter except telling the court what they witnessed.
  • Circumstantial evidence – credit card receipts, surveillance evidence obtained after hiring a private investigator.
  • Naming a co-respondent (the person with whom the affair was happening), thus forcing them to testify. It's suggested to be completely sure that you have the right person.

If you knew your spouse had an affair, but you continue to live and cohabitate with them, you cannot use adultery. In the court’s view, you have forgiven them. However, if there is another affair, you can then use adultery as ground for divorce again.

Do I Need a Lawyer?

Anything that cannot be agreed upon between you and your spouse will be decided by a judge. Thinking of hiring a lawyer? This is probably a good idea since you will be held to the same procedural standards as a lawyer if you have to appear in court.

If you and your spouse are in agreement and it is a simple, no-fault situation (no children, the  finances are pretty clear), you could carefully file the paperwork on your own. The more intricate the situation, the more advisable it is to hire a lawyer.

Fault divorces involve proving the grounds for your divorce, which is becoming more administratively intensive to do. In this case, you should retain a lawyer. Having a lawyer guide you through this process will ensure you’ve presented your best case for a fair settlement.

Other Important Things to Know

  • To file for divorce in Virginia, you must have lived there for six months.
  • Your should file in the circuit court where you and your spouse live, or where the defendant (the person who is being filed against) lives.
  • You don’t need the signature of the other party to finalize the divorce if the paperwork has been filled out and filed correctly. If your spouse does not sign the paperwork, it doesn’t matter: the divorce will still be finalized. Your spouse cannot prevent the divorce.
  • You shouldn’t date during the separation period. Even if you had remained faithful throughout the marriage, dating while separated is considered marital misconduct (adultery).
  • Virginia is a equitable division state. That means property will be split between spouses in a way that is equitable based on the entire picture of the couple's finances, but does not have to be equal.



Bernadette Vielhaber

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