Types of Divorce
In Virginia, a party may seek a divorce from bed and board (a mensa et thoro) or an absolute divorce (a vincula matrimonii). Under a bed and board divorce, the parties are legally separated but are not allowed to remarry. An absolute divorce legally terminates the marriage and allows the parties to marry again. A person seeking a bed and board divorce, if granted, may ask the court to later merge it into an absolute divorce after at least a year has passed since the parties’ separation date. Bed and board divorces are quite rare, but there are procedural advantages to requesting one at the outset of a proceeding.
“No Fault” Grounds for Divorce
If you and your spouse have continuously lived separate and apart for more than one year, a “no fault” divorce may be granted by the Court. If no children exist from the marriage (including adopted children) and there is an executed separation agreement, the parties only need to live separate and apart for six months, rather than a year. If the couple has children, the parties are required to be separated for at least one year, even if they have a fully executed separation agreement.
Either you or your spouse must have the intent for the separation to be permanent at the beginning of the separation period. While living separate and apart usually means that the couple lives in different residences, it is possible to live separately under the same roof. Factual circumstances will determine whether your separation period meets the requirements for a “no-fault” divorce in Virginia.
“Fault” Grounds for Divorce
Virginia law allows a party to file under various fault grounds for divorce. Because filing for a fault-based divorce in Virginia can affect your financial stake and outcome in the divorce, you should seek the help of an experienced Northern Virginia divorce and family law attorney to determine what is best for your situation and to preserve your rights throughout your divorce.
In addition to the “no-fault” ground for divorce, a party seeking a divorce may, depending on their circumstances, file under the following fault grounds:
- Adultery: Adultery consists of a spouse having sexual intercourse with another person who is not his or her spouse. This seems fairly straightforward, however, a party’s burden to prove adultery in a Northern Virginia divorce proceeding is higher than the burden of proof for other matters in the same divorce case. This is because adultery is still a misdemeanor in Virginia. An experienced Northern Virginia divorce and family law attorney can explain what types of proof are required, and how to protect yourself if you find yourself accused of adultery.
- Cruelty or reasonable apprehension of bodily hurt: Not only can physical acts of violence be considered cruelty, but also certain abusive, humiliating, and angry language. Speaking with an experienced Northern Virginia divorce and family law attorney can help you figure out whether your situation allows you to file for a divorce in Northern Virginia based on cruelty.
- Willful desertion or abandonment
- Conviction of a felony, and incarceration for more than one year
Knowing when to file for a divorce and what requirements to fulfill can be a complicated matter in Virginia. Choosing an experienced divorce and family lawyer is the first step.