Under Virginia law, you can obtain a fault based divorce and a non-fault based divorce. In a fault based divorce, one spouse is required to plead in their divorce complaint that the other spouse committed a wrongful act, but not just any wrongful act. Virginia law provides a list of transgressions which constitute grounds for a fault-based divorce. They are:
- Adultery – when one spouse has sexual intercourse with someone other than their spouse while the couple is married.
- Abandonment – where one spouse willfully abandons or deserts the other spouse for a period of one year or more.
- Cruelty – where one spouse has caused bodily harm to the other, or caused reasonable apprehension of bodily harm.
- Felony Conviction – where one of the spouses is convicted of a felony after the marriage, imprisoned for one year or more and the couple does not cohabitate after the offending spouse’s incarceration begins.
Once the spouse has been served with the complaint alleging one of the aforementioned acts, that spouse has the opportunity to either outright admit to the wrongdoing stated in the complaint or deny the allegations in an answer. This spouse can also raise defenses to the acts complained of (such as the complaining spouse’s knowledge of adultery but they continue to cohabitate with the adulterous spouse or condoned the adultery) and even allege that the other spouse is (also) culpable of transgressing.
After the divorce complaint has been served and the time expires for an answer to be served, a hearing will be held on the allegations raised in the complaint and answer. If the court finds that one or both of the parties proves one or more of the fault based grounds mentioned above, then the judge will enter an order of divorce.
In a non-fault based divorce, the divorce complaint does not allege that the other spouse is guilty of wrongdoing. Rather, the married couple must legally separate by not living together for a period of six months and both spouses must execute a legally binding and complete settlement agreement dealing with all issues of property/debt division. However, a married couple with children or that cannot reach a mutually agreeable settlement agreement must not cohabitate for a period of one year or more before the divorce can be granted. One of the primary reasons for these specific waiting periods is to allow the couple to attempt reconciliation and/or resolve all issues of property division.
Making the decision to divorce is typically not an easy one, and obtaining a divorce can be difficult – especially if it is fault based. Gathering the evidence necessary to prove fault and eliciting the needed testimony can be arduous and painful. For this reason, you should always hire a qualified and compassionate family law attorney who understands your case and who will fight for your rights. Contact the Fairfax divorce lawyers at DiPietro Family Law Group.