To get a divorce in any state, you must have "legal grounds"—a specific reason or reasons—for why your marriage is ending. Before filing a divorce in Virginia, it's helpful to understand what the state's grounds for divorce are, how to decide which ground (or grounds) apply to your divorce, and when you must decide which ground or grounds to move forward with.
When you prepare your divorce petition (the formal application for divorce), you must provide the court with a reason, or "legal grounds," for why you're seeking a divorce. Some states allow parties to file for divorce on fault-based grounds, meaning you claim that your spouse's actions during the marriage caused the divorce. Every state that allows fault-based divorce has its own list of allowed grounds for divorce. The most common include abandonment, addiction, and adultery.
If you don't have a specific fault reason for your divorce, there's no need to panic. All states allow some form of "no-fault" divorce. In most states, you can get a no-fault divorce based on either:
One of the most attractive features of no-fault divorce is that neither spouse needs to go into the details of the marriage or place blame on the other. Arguing a fault-based divorce will likely result in the divorce taking longer to finalize and increase the overall cost of your divorce.
Virginia allows both no-fault and fault-based divorces.
Virginia has only one no-fault ground for divorce: separation. Couples who wish to qualify for a no-fault divorce must prove that they've lived separate and apart without cohabitation (sexual relations) for a continuous period of at least one year. (Va. Code § 20-91(A)(9) (2022).)
Under certain conditions, the court can shorten the separation period to six months. In order to qualify for this shorter time frame, the couple must have entered into a separation agreement, and there must be no minor children either born of the parties, born of either party and adopted by the other, or adopted by both parties. (Va. Code § 20-91(A)(9) (2022).)
It's important to remember that a no-fault divorce isn't necessarily an uncontested divorce. The ground for divorce is only one aspect of the process. For example, you might be filing for divorce on the ground that you're separated, but disagree with your spouse on issues such as spousal support (alimony), division of property and debt, child custody, and child support. If you disagree with your spouse on any issue, your divorce will be contested.
The grounds for a fault-based divorce in Virginia are:
If both spouses agree to separate, neither can allege desertion later. So, if you know your spouse is thinking about leaving, and you want to claim desertion, don't agree to the separation. Or, if you're contemplating leaving the marital residence, consider consulting an attorney first—even with good reason, leaving the marital residence can sometimes hurt you when it comes to property division, alimony, and custody determination. And, if you leave, you might lose access to important financial records and other documents kept in the home.
(Va. Code § 20-91(A) (2022).)
There's often a downside to using fault-based grounds in a divorce. For one thing, proving fault can be burdensome. It increases expenses, including attorneys' fees and will almost invariably ratchet up stress levels. You might need to bring witnesses into court to help substantiate your claims, which could be a major inconvenience.
In many states there's normally no legal or financial benefit to pursuing a fault divorce (unless a particular type of fault could be relevant to a parent's fitness for custody). However, in Virginia, proving that your spouse was at fault for the divorce might result in a financial benefit in a few circumstances:
The court can also take the other fault-based grounds into consideration when it decides spousal support. However, unlike adultery, they won't automatically result in a denial of support. (Va. Code § 20-107.1(E) (2022).)
Before you file for a fault-based divorce, you should consider whether there is any benefit in doing so. Consulting with a local family law attorney should help you understand whether a fault-based divorce makes sense in your case.
You might also want to consider using an alternative dispute resolution (ADR) method, such as mediation, as a means of settling your marital issues. Divorce mediators are aware of the applicable family laws in your state, and addressing your case in the less formal environment of the mediator's office, rather than a courthouse, can go a long way toward finding a mutually-acceptable resolution of your issues, with less angst and less expense.
All grounds for divorce, including separation, must be supported by evidence, such as an independent witness who personally knows about the situation.
How strong your evidence must be depends on the ground on which you're basing your divorce. For example, you must have "clear and convincing" evidence to demonstrate adultery—it must produce in the mind of the judge or the jury a firm belief or conviction that the party committed adultery. (Watts v. Watts, 581 S.E.2d 224 (Va. Ct. App. 2003).)
The standard of proof for the other grounds for divorce in Virginia, such as desertion, cruelty, and separation, is a "preponderance of the evidence." This standard is easier to meet than "clear and convincing," and usually simply requires a witness or even your own sworn testimony.
Unlike some other states, Virginia doesn't have a mandatory waiting period between when you file your divorce petition and when the court can begin processing the case. So how long your divorce will take depends on whether it's contested (contested divorces take longer than uncontested ones), and how busy the court is. You can ask the clerk of the court how long it's taking the court to process divorces on its calendar.
In certain cases, a spouse might have grounds for an annulment of the marriage. An annulment is different from divorce, and might be appropriate when the circumstances surrounding the marriage render it void (invalid).
An example would be where a spouse was still legally married to someone else at the time of the marriage (bigamy). The law regarding annulment can be quite complex, so you'd be wise to consult a local divorce lawyer before taking any action.