S & R Law Firm
A decision to divorce a partner can be one of the most difficult decisions to make. On top of that, there are a number of legal concerns which must be considered before you can obtain a divorce. As a basic overview, in order to divorce or legally separate in the Commonwealth of Virginia, one of the spouses must be a resident or domiciliary of the state for at least six months prior to the filing of the initial complaint for divorce. Deciding where in the state to file is vital because the complaint must be filed in the proper venue. A proper venue is:
- The county or city where you last resided with your spouse as a couple or,
- If you are the plaintiff, you may choose the city or county where the defendant resides if they are a resident of Virginia, or the city or county where you reside if the defendant is NOT a resident of Virginia.
For purposes of residency, simply residing in the state for a period of 6 months or longer with an intent to remain will qualify you as a resident of the Commonwealth. If you are a military serviceman or woman, an intent is imputed, so the only requirement is to have resided in the state for 6 months or more.
In order for the judgment of a Virginia court to hold any weight over your spouse, the court must have personal jurisdiction over them. Personal jurisdiction may be established if the defendant is properly served and:
- Resided in Virginia when the cause or grounds for the divorce occurred.
- Defendant was a resident of the state when the divorce action commenced.
- Owns or maintains a home in the state of Virginia.
- Or the parties lived in the state at the time of the separation which is the grounds for the divorce.
In the Commonwealth of Virginia, complaints for divorce are filed in the Circuit Court or the Juvenile and Domestic Relations Courts in the proper venue.
By now, you've seen the word “grounds for divorce” several times. It is important to note that there is both fault and no fault grounds for divorce in Virginia. There must be a proper reason or ground for the divorce specified in the complaint, whether or not you opt for a fault or no fault reason will be fact specific. However, it is important to note that proceeding with an uncontested divorce means that the complaint will be filed on no-fault grounds.
No-fault grounds for divorce are:
- Living separate and apart for one year without cohabitation, or
- Living separate and apart for six months, if there are no children and you and your spouse have entered into and executed a property settlement agreement, or a separation agreement.
If the no-fault grounds don't seem applicable to you, or if you and your spouse are in disagreement over one or more points, such as child or spousal support, custody, visitation or anything else, it will be necessary to file your divorce as a contested one. It is worth noting that just because you are proceeding on a contested basis, does not necessarily mean that you are filing for divorce on the basis of fault grounds. The no-fault grounds such as living separate or apart can still be the grounds you use for your divorce even if there are other points of contention that you and your spouse will need the court to decide.
However, the Commonwealth of Virginia does also offer fault-based grounds for divorce and they are as follows:
- Adultery, including homosexual acts, sodomy, or buggery,
- Abandonment or Desertion
- Conviction and imprisonment for one year
Socially speaking, adultery can mean many different things to many different people. However, in the Commonwealth under the code of Virginia, adultery is very clearly defined. In order for you to procure a divorce on adultery grounds, you must prove many different things. First and foremost, you must prove that your spouse engaged in sexual activity voluntarily with another person, which culminated in sexual intercourse. Simply proving communication or an emotional or mental affair is not sufficient to obtain a divorce on adultery grounds. Plain & simple, proving adultery means you will have to prove sexual intercourse with “clear and convincing” evidence. Additionally, the Commonwealth requires some degree of corroboration which strengthens the adultery claim, from an outside source which is unrelated to the matter. Most times, even an admission from your spouse would require corroboration.
This probably leaves you wondering what kind of evidence you need to present in court to prove adultery. This can be a tricky situation. Text messages, emails that specifically reference sexual activity can be helpful, though not a home run. Photographs, letters etc. are also helpful as corroboratory evidence. An admission by your spouse in text or email format can also be very powerful evidence. With all that said, adultery cases are difficult ones to prove. They often require the aid of a private investigator to gather the necessary evidence.
Furthermore, there are defenses your spouse can use to fight a claim of adultery in court. Establishing any one of these defenses in court will effectively ban the entry of a divorce decree on the grounds of divorce:
- Connivance: this means that the innocent spouse is actually encouraging or facilitating the affair or adultery.
- Recrmination: this essentially means that the accusing or innocent spouse is also guilty of one of the fault-based grounds for divorce. For instance, Spouse A is accusing B of adultery, but Spouse B can also prove that Spouse A is engaging in adultery, cruelty or desertion.
- Condonation: this is the defense people most commonly fallen into. This means that the parties voluntarily continue living together and sharing a bed after the innocent party learns of the adultery.
- Statutorily time-barred: the Commonwealth has a 5 year statute of limitations on adultery as a divorce ground in Virginia. This means that if you file for divorce based on the ground of adultery and it has been 5 or more years since the affair occurred, the divorce cannot be granted on those grounds.
Another fault based ground for divorce is desertion. Desertion can be complicated because it requires proof of two elements: 1) the willful desire or intent to desert and 2) actually and effectively ending or cutting off of the marital relationship. The separation must be willful by one spouse and there must be intent from the deserting spouse to carry through a period of one year of not returning to the unoffending spouse.
There are two types of desertion which can be used as fault-based ground for divorce: constructive and actual. Actual desertion occurs when a spouse leaves the residence with no intent of ever returning to live there. Constructive desertion is defined, simplistically, as a spouse leaving the relationship while physically remaining in the home itself. This can be confusing because it doesn't seem to follow, right? This statute accounts for the possibility that a spouse may check out of the relationship mentally without physically leaving. This is most common, however, in situations where this constructive desertion results in an intolerable or unendurable living situation. It is worth noting, though, that constructive desertion is very abstract and difficult to prove.Cruelty
As a ground for divorce in Virginia, cruelty typically requires from sort of physical assault or threat of violence. In rare cases, however, extreme mental cruelty can qualify as well.
Gathering evidence for cruelty usually consists of gathering of police reports, medical records proving injuries, photograph, witnesses and more. The standard in Virginia is “cruelty or reasonable apprehension of bodily hurt.” With that said, any sort of abusive language, humiliation, or neglect can be found to be cruelty. A final divorce cannot be granted on this ground, however, until on year has elapsed since the acts of cruelty. During this one year term, separation is necessary.