Whenever a couple files for divorce, they’re required to cite “legal grounds,” or the reason they want to dissolve their marriage. These grounds can be fault-based, where one or both parties has done something wrong, or no-fault, where the parties fulfill the requirement to remain separate and apart from each other for a required period of time set by statute (see more below).
Fault-based grounds for divorce in Virginia
If you believe your spouse is guilty of marital misconduct and have the appropriate proof to present to the court, you may be able to use their actions as grounds to file for divorce. Depending on your grounds, you may be granted a divorce from bed and board or a divorce for the bond of matrimony.
Grounds for a divorce from bed and board (partial divorce)
In Virginia, a divorce from bed and board (a mensa et thoro) legally separates you from your spouse. With sufficient proof, this type of divorce may be filed and granted immediately, but neither you nor your spouse may remarry. One year after you’ve received a divorce from bed and board, you can ask the court to merge this decree into an absolute divorce from the bond of matrimony (a vinculo matrimonii).
1. Willful desertion or abandonment
If your spouse has left the marital home and willfully deserted you and/or your family for at least one year, you can file for a fault-based divorce on these grounds. You’ll need to prove that your spouse intended to abandon you – in other words, separation by mutual consent or leaving because of spousal cruelty does not count as desertion. Whatever the details, present this information in your case to the court to cite desertion and/or abandonment.
If your spouse causes you reasonable fear of bodily harm, you can cite “cruelty” as grounds for a fault-based divorce. If you’ve been on the receiving end of threats or acts of physical violence, be sure to document these threats and acts so you can demonstrate to a judge that you feel unsafe in your marriage.
Grounds for a divorce from the bond of matrimony
A divorce from the bond of matrimony is absolute and final, and both spouses are free to remarry after the final order of divorce is granted. Here are the two fault-based grounds you may cite for this type of divorce:
2. Adultery, sodomy, or buggery
Extramarital sexual relations in the form of adultery, sodomy, or buggery (bestiality) can be cited as grounds for your divorce.
To get a divorce based on adultery, you will have to solidly demonstrate to the court that your spouse had or is having sexual relations with another person. Proving an affair can be difficult, so you’ll want to work with an attorney to build your case and gather sufficient evidence.
Keep in mind that divorce will not be granted on the grounds of adultery or sodomy if you continued to maintain a relationship with your spouse after learning about the affair. For instance, if you knew your partner was unfaithful and tried to “work things out” while still living or romantically interacting with your spouse, you can’t cite this misconduct for your fault-based divorce.
2. Conviction of a felony
If your spouse commits and is charged with a felony, you may cite their conviction as grounds for a fault-based divorce if they are sentenced to more than one year of confinement. To do so, you’ll need proof of your spouse’s conviction and sentence, and agree to not resume cohabitating with your spouse after their confinement.
No-fault divorce in Virginia
If you simply find yourself out-of-love and/or incompatible with your spouse and there’s been no marital misconduct, you may choose to file a no-fault divorce from the bond of matrimony, also called a separation divorce. In this case, the grounds for divorce are typically cited as “irreconcilable differences,” meaning no amount of therapy, counseling or effort from the parties can mend the relationship.
In Virginia, couples can file for this type of divorce if they have met the minimum separation requirements: You must have lived “separately and apart without any cohabitation” for one full year and one day (if you have minor children together) , or for a full six months and one day (if you have no minor children and a signed marital settlement agreement).
No-fault divorces are often easier because if you are able to work everything out in your settlement agreement — including the division of marital assets and debts, and child custody/visitation arrangements, if applicable — you may not have to appear before a judge. To make the process as smooth as possible, follow our tips for drafting your agreement with your spouse.
No matter how “done” you might feel with your marriage, it can be difficult and painful to close this chapter of your life. By fully understanding your options and determining your legal grounds for divorce, you can begin the separation process and start moving toward a new future.
Get help with your Virginia divorce
If you are seeking a divorce or need to draft a settlement agreement, we recommend consulting an experienced attorney to help you.
The Law Office of Patricia E. Tichenor has nearly two decades of experience helping Virginia residents with family law matters, including settlement agreements and divorce cases. Contact us to discuss your circumstances so we can help you take the first steps in your divorce process.