To Be Or Not To Be: Reconciliation vs. Divorce In Virginia

Divorce is often a difficult period for a married couple, particularly when they have children together. Occasionally divorcing spouses may attempt to reconcile, or even call off the divorce entirely. This can occur for a variety of reasons. While reconciliation may be right for your unique situation, they are not always successful and can cause more harm than good. There are also some important legal consequences of choosing to reconcile that you should be aware of.

In Virginia, grounds for divorce can be fault-based and no-fault based. In a fault-based divorce, one spouse must allege unacceptable conduct on the part of the other spouse (adultery, cruelty and constructive desertion, actual desertion). When served with divorce papers, the spouse against whom allegations are made is given an opportunity to admit or deny the allegations, as well as to allege defenses and counterclaims against the other spouse. If the couple chooses to reconcile after papers have been filed, the couple must notify the court of their intent to withdraw the case—otherwise none in Virginia a “nonsuit.”

In a no-fault divorce, neither spouse accuses the other of wrongdoing. Rather, the couple separates by not living together as husband and wife for a specific period of time. A married couple with children and/or contested property division issues must be separated for at least one year. If the couple has no children, and provided they enter into a legally executed settlement agreement resolving all property division issues, they can obtain a no-fault divorce after a six-month separation.

The primary purpose of the waiting periods for a no-fault divorce is to allow the couple an opportunity to reconcile. However, reconciliation is not simply a state of mind. A couple legally reconciles if each spouse holds themselves out as married to the other, cohabitates in the same room, sleeps in the same bed and/or engages in sexual intercourse. Though isolated instances of cohabitation or intercourse will likely not be sufficient to prove reconciliation, engaging in these activities for weeks or months at a time—especially if there are ongoing talks about getting back together—may suffice to demonstrate a reconciliation.

The legal consequences of reconciliation are significant. Reconciliation destroys any grounds for a fault-based divorce. It also “restarts the clock” for no-fault divorces. If a married couple with children has lived apart for five months before reconciling by living and sleeping together for three months, and then decides to divorce (again), the one-year waiting period starts over. The couple will have to live separate and apart for an entire year after that three-month reconciliation before obtaining a no-fault divorce. One of the best ways to avoid this scenario is for the couple to enter into a well-drafted settlement agreement. Such an agreement would state that it remains in full force and effect regardless of reconciliation. This may seem odd, but it will protect your rights in the event the reconciliation does not work-out.

If you are contemplating divorce, already going through one and/or are considering reconciliation, you should contact a qualified and compassionate family law attorney as soon as possible.

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