Grounds for Divorce in Virginia

Learn about the requirements for no-fault and fault divorce in Virginia.

What Is the Definition of Legal Grounds?

When you prepare your application for divorce, all courts require the filing spouse to list a specific reason, or legal grounds, for the request. Some states allow parties to file for divorce based on fault, meaning you claim that your spouse’s actions during the marriage are the cause of the breakup. Fault grounds vary by state, but the most common include desertion, alcohol or drug addiction, or 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, which courts usually base on incompatibility, or irreconcilable differences, which means that the spouses no longer get along and there’s no amount of therapy, mediation, or counseling that can help them reconcile. Many states also allow spouse to base their divorce on a separation for a certain amount of time. Placing blame and pointing fingers at your spouse can create tension, so one of the most attractive features of the no-fault divorce is that neither spouse needs to go into the details of the marriage to place blame on the other.

What Grounds Will the Court Accept in Virginia?

Virginia is a hybrid divorce state, meaning you can file for divorce if you and your spouse can meet the separation requirements (no-fault) or, you can ask for a divorce if your spouse is guilty of marital misconduct (fault).

No-Fault Divorce Is Simple

It’s a common misconception that divorce needs to be a complicated process filled with intense emotions and heated disagreements. On the contrary, no-fault divorce eliminates the need to rehash old arguments from the marriage and allows couples to end the relationship in a civil manner.

Couples who wish to qualify for a no-fault divorce must prove that they have lived separate and apart for a continuous period of at least one year. Some couples find it easier to remain living together, even during the divorce process, but that’s not an option in Virginia.

Although living separately from a spouse is a requirement for no-fault divorce, the amount of time spent apart may change if the couple can demonstrate that:

  • there are no minor children from the marriage, and
  • the couple has prepared a separation agreement.

If you meet the above requirements, a judge can reduce the one-year time frame to only six months of living separate and apart. This reduction can be extremely beneficial, especially if the parties can’t afford rent for two homes during the divorce process.

What Is a Separation Agreement?

Unlike what you see on television, most divorces settle long before the need for a trial, but only when the couples are willing to negotiate. In cases where the spouses can still communicate, drafting a separation agreement, which means dealing with all the typical divorce-related issues, is the essential part of a divorce. During negotiations, couples agree how to divide marital property, assign marital debt, and determine if either spouse will provide spousal support for the other.

If you can agree to these terms, the legal process to divorce is less contentious and less expensive.

Fault Divorce Requires Proof

In addition to the no-fault divorce process, Virginia courts allow parties to request a divorce based on a spouse’s marital misconduct. Most couples are happy to move through the legal process without shaming their spouse, but for others, placing blame on a guilty party is precisely what the filing spouse wants to do.

Fault divorce may be the best option for you if you and your spouse haven’t been separated long enough to qualify for a no-fault divorce. But, the court doesn’t favor couples who fabricate marital misconduct for the sake of getting divorced faster. If the court finds that you and your spouse created fault, the judge will dismiss your case, and you will need to start the process again.

The acceptable fault grounds for divorce in Virginia include:

  • adultery, sodomy, or buggery, committed by either spouse
  • conviction of a felony
  • willful desertion or abandonment for at least one year, and
  • cruelty by one spouse that causes the other reasonable fear of bodily harm.

Adultery in Fault Divorce

The law in Virginia says that a spouse can file for divorce based on fault if the other party committed adultery, sodomy, or buggery. The definition of adultery is common knowledge, but it’s not enough to accuse your spouse of having an affair, and although the court doesn’t require eyewitness proof, you need to demonstrate that your spouse has a sexual relationship with someone other than you.

In most cases, photos alone aren’t going to meet the standard of proof, unless it shows your spouse in a compromising position. Take your time preparing your evidence, because you’ll need to convince a total stranger (the judge) that your spouse had sexual relations with a third party, which can be difficult. The same standard applies for sodomy, which is only a ground for divorce if your spouse commits it outside the marriage.

Buggery isn’t something you hear about every day, but in Virginia, if your spouse has sexual relations with an animal, you can ask the court for a divorce based on this behavior.

Something to keep in mind is that a court can’t grant a fault divorce based on adultery, sodomy, or buggery if the accusing spouse continued to live with or have sexual relations with the guilty spouse. So, if you knew about an extramarital affair, but tried to work things out with your spouse later, you can’t use the misconduct as your reason for divorce.

Lastly, if your spouse’s affair happened more than five years before you file, the court will deny your divorce based on a statute of limitations—meaning too much time has passed between the bad behavior and the request for legal intervention. The moral of the story: if your spouse strayed outside the marriage, ask the court for help sooner rather than later.

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