Given the percentage of marriages that end in divorce, nearly anyone could be affected in some way by a separation or divorce.
Dissolving a marriage often involves property rights and financial matters, and can raise complicated legal problems, especially when children are involved. But before the complicated details can begin, there has to be ground for the divorce itself.
The following information was prepared by The Family Law Section of the Virginia State Bar to provide the public with basic answers to some of the fundamental legal questions concerning divorce and separation in Virginia. We hope that this information is helpful to you and will give you a greater understanding of some of the complications that can arise – as knowing ahead of time is always better than being surprised in an attorney’s office or courtroom.
What are the Grounds for Divorce?
Virginia law recognizes two types of divorce: divorce from bed and board (a mensa et thoro) and a divorce from the bond of matrimony (a vinculo matrimonii). A divorce from bed and board is a partial or qualified divorce under which the parties are legally separated from each other but are not permitted to remarry anyone else. A divorce from the bond of matrimony is a complete and absolute divorce. Any person granted a divorce from bed and board may ask the court to "merge" the decree into a divorce from the bond of matrimony after at least one year has passed from the date the parties originally separated. However, you may not know that Virginia law requires "grounds" (valid reasons for divorce prescribed by law) for divorce and that they must be proven to the court even if the parties agree that a marriage should end. These grounds are briefly described below.
Grounds for Divorce from Bed and Board
Willful desertion or abandonment
Desertion or abandonment requires both the breaking off of cohabitation and an intent to desert in the mind of the offender. A mere separation by mutual consent will not be considered desertion. Further, if one spouse leaves because the other has committed acts that legally amount to cruelty, then the spouse who leaves is not guilty of desertion. In fact, the spouse who leaves may be awarded a divorce on the ground of cruelty or constructive desertion.
If desertion grounds exist, a suit for a divorce from bed and board may be filed with the court immediately after the separation. If the desertion continues for more than one year from the date the parties originally separated, then the desertion is sufficient to constitute a ground for divorce from the bond of matrimony.
Cruelty and reasonable apprehension of bodily harm
Cruelty authorizing divorce requires acts that tend to cause bodily harm and render the spouses living together unsafe. Mental cruelty alone is not normally a ground for divorce in Virginia. However, if the conduct is such that it affects and endangers the mental or physical health of the divorce-seeking spouse, it may be sufficient to establish grounds for divorce. Normally, however, rude words alone will not suffice.
Cruelty constitutes the basis for a divorce from bed and board and can be filed immediately after the parties separate. After one year has elapsed from the time the act(s) of cruelty were committed, grounds will exist for a divorce from the bond of matrimony.
Divorce from the Bond of Matrimony
Separation divorce — the "No Fault" divorce
While grounds for divorce traditionally implied misconduct by one or the other spouse, modern divorce laws do not require “fault” grounds for a divorce to be granted. A “no fault” divorce from the bond of matrimony may be awarded upon a showing that for more than one year one of the parties intended to and the parties have continuously lived separate and apart without any cohabitation. If the parties have entered into a Property Settlement or Separation Agreement and there are no minor children, the time period is reduced from one year to six months.
Although separation provides a "faultless" ground for divorce, fault may still be an issue when spousal support (alimony) is being sought or can be a factor in determining the division of marital property. Further, a judge is free to award a divorce on fault grounds even though "no fault" separation grounds exist, conversely a judge is free to award a “no fault divorce” even if fault grounds exist.
Adultery, sodomy, or buggery
Proving adultery is very fact-specific. The evidence must be strict, satisfactory, and conclusive that the other spouse did in fact engage in sexual relations with another person. While there must be some corroboration of the testimony of a spouse to prove adultery, "eyewitness" testimony as to the adulterous acts is not required. In fact, most cases of adultery are proven without eyewitness testimony by using other evidence of the circumstances involved. Sodomy is a sexual act, other than intercourse, such as oral or anal sex. To be grounds for divorce, it must be committed with someone outside the marriage. Buggery is bestiality or a sexual act against nature. The standard of proof for these grounds is the same as that for adultery. Suspicion or speculation is not enough.
The "guilty" spouse has a number of "defenses" to the charge of adultery, sodomy, or buggery. If the guilty spouse can successfully establish any one of these defenses, then a divorce will not be awarded on these grounds. These are very fact specific and should be reviewed with an attorney.
Conviction of a felony
If a spouse has been convicted of a felony, sentenced to confinement for more than one year, and is in fact confined, then the other party has grounds for a divorce from the bond of matrimony as long as he or she does not resume cohabitation with the guilty spouse after knowledge of the confinement.
Unlike a divorce which dissolves a valid marriage, an annulment is a legal decree that a marriage is void. Annulments are granted only in limited circumstances such as a marriage entered into because of fraud, duress, or coercion. An annulment cannot be granted merely because the marriage is of short duration, and legal annulments are normally not granted for "religious" reasons.
We Can Help
If you are considering separation or divorce and need assistance with these and other complex legal issues, please contact Davis Law Group’s family law attorney, SuAnne Hardee Bryant. She is a member of the Collaborative Divorce Solutions of Tidewater, which seeks to help families find mutually beneficial, out-of-court solutions for their divorce proceedings. SuAnne is also an experienced family law, employment law and litigation attorney.