Termination of the Marriage
§ 2-1. Annulment
§ 2-2. Corroboration Requirement
§ 2-3. Death
§ 2-4. Divorce – Grounds
(A) Generally
(B) Adultery
(C) Construction Desertion
(D) Cruelty
(E) Desertion
(F) No Fault
(G) Felony Conviction
§ 2-5. Divorce – Jurisdiction
(A) Personal
(B) Subject Matter
§ 2-6. Divorce – Types
(A) Bed and Board
(B) Bonds of Matrimony
§ 2-7. Divorce – Defenses
(A) Collusion
(B) Condonation
(C) Connivance
(D) Consent
(E) Justification
(F) Laches
(G) Insanity
(H) Reconciliation
(I) Recrimination
Chapter 2
TERMINATION OF THE MARRIAGE
2010---Mustafa v. Mustafa, Va. Ct. of Appeals, Unpublished, No. 2175-09-4
A party charging fraud as grounds for an annulment has the burden of proving, by clear and convincing evidence, (1) a false representation, (2) of material fact, (3) made intentionally and knowingly, (4) with the intent to mislead, (5) reliance by the party misled, and (6) resulting damage to the party misled.
Trial court did not err in granting husband an annulment on grounds of fraud. Evidence showed that, despite Wife’s agreement with Husband prior to the marriage that she would have a sexual relationship with him after they were married, Wife admitted to others that she had no intention of consummating the marriage and that she only married husband so that she could come to the United States for the benefit of her daughter. The parties were never physically intimate throughout the marriage.
2006---Rahnema v. Rahnema, 47 Va. App. 645
The standard of proof for an annulment based upon bigamy is the clear-and-convincing standard.
This standard supports the strong presumption favoring the challenged marriage.
§ 2-2. Corroboration Requirement
1986---Venable v. Venable, 2 Va. App. 178
Wife's offer into evidence of the torn pants that husband had ripped off of her on the occasion which prompted her leaving, pornographic magazines that husband kept in the marital home, and testimony by wife's mother that she had witnessed bruises and bite marks on wife as well as husband's violent temper were sufficient corroboration of physical and mental cruelty by husband. The purpose of requiring corroboration is to prevent collusion by the parties in obtaining a divorce. Where it is apparent, as it is in this case, that there is no collusion, the corroboration need only be slight.
The trial court did not err in refusing to grant husband a divorce on the grounds of wife's adultery. Wife admitted during the hearing that she had committed post-separation adultery. However, neither wife nor husband, who apparently first learned of wife's adultery during the hearing, offered evidence to corroborate wife's admission.
1957--- Baytop v. Baytop , 199 Va. 388
Corroboration rests in the facts and circumstances of each case. Only those facts necessary to the judgment must be supported. Testimony by wife and her family members, and exhibits showing that husband never established a home for his wife, that he humiliated her, was often rude, that he became cold and indifferent toward her, and that he engaged in illicit relations with another woman was sufficient to sustain a divorce based on cruelty, though no physical cruelty was inflicted.
1952---Graves v. Graves, 193 Va. 659
The question of corroboration is one of fact, the decision of which in each case depends upon the peculiar facts of that particular case. It is not necessary that the testimony of the complaining spouse be corroborated on every element or essential charge stated as a ground for divorce. The corroborative testimony need not be sufficient, standing alone, to prove the alleged ground for divorce. Any other rule would deprive the testimony of the complaining spouse of any practical effect. The general rule is that where a particular fact or circumstance is vital to the complaining spouse's case, some evidence of the same, in addition to the complainant's own testimony, is essential.
1936--- Martin v. Martin , 166 Va. 109
Corroboration rests in the facts and circumstances of each case. Confirmation is not necessary for that removes all doubt, while corroboration only gives more strength than was had before. It need not rest in the testimony of witnesses but may be furnished by surrounding circumstances adequately established.
§ 2-3. Death
2004---Estate of Hackler v. Hackler, 44 Va. App. 51
A divorce suit abates when one party dies while the suit is pending and before a decree on the merits, as death terminates the marriage and therefore renders the divorce suit moot as it relates to the parties’ marital status.
Despite the fact that the trial court entered a show cause against husband, while husband was still alive, for violating pendente lite orders, the trial court erred by entering an order, after husband’s death, that the conservator pay wife $77,000 out of husband’s estate to purge the contempt. Once husband died, the trial court lost jurisdiction to dispose of the contempt holding because the divorce suit itself had abated. A civil contempt may be prosecuted in the cause out of which it arose and not as a separate proceeding. When the jurisdiction to enter a decree in the main cause ends, no jurisdiction survives as to matters purely ancillary to that object.
2008 ---Fadness v. Fadness, 52 Va. App. 833
Where multiple grounds for divorce exist, the circuit court is free to choose between those grounds in granting the divorce, provided that the ground so chosen is supported by the evidence.
1994---Konefal v. Konefal, 18 Va. App. 612
One ground of divorce is not entitled to precedence over another. Where dual or multiple grounds exist, the trial judge has the sound discretion to select the grounds upon which he will grant the divorce, provided they are supported by the evidence.
2010---Davis v. Davis, Va. Ct. of Appeals, Unpublished, No. 1241-09-2
Evidence that husband and his paramour had known each other socially, that they met frequently at a tennis club, that husband had spent the night at the residence of the paramour when his wife was out of town, that the paramour had left husband sexually explicit voice messages, and husband’s and paramour’s inability to provide a credible explanation for the messages or conduct constituted clear and convincing evidence to support the trial court’s finding of adultery by husband.
2009---Griffin v. Griffin, Va. Ct. of Appeals, Unpublished, No. 2810-08-4
The following evidence was sufficient to prove husband's post-separation adultery by clear and convincing evidence: testimony from a private investigator that husband and his paramour spent the night together regularly, and that on one occasion the investigator witnessed the two walk into husband's house, remain there all night, and the paramour exit the house the next morning looking disheveled and dressed in different clothes than those she wore the night before; deposition testimony by paramour that she and husband shared a room when vacationing and that she signed invoices during those vacations using husband's last name as if she and husband were married; husband's and paramour's own admissions that they had spent the night together in the same bed; and failure by husband or paramour to offer alternative explanations to their behavior.
2007---Polemeni v. Polemeni, Va. Ct. of Appeals, Unpublished, No. 1682-06-1
Trial court did not err in awarding divorce on the grounds of adultery. Wife admitted to having an adulterous relationship during the marriage. Husband condoned the adultery but it was conditioned upon her cessation of her contact with the boyfriend and remaining in New York, and Wife’s moving back to Virginia and resuming relations with the boyfriend nullified the condonation.
2003---Watts v. Watts, 40 Va. App. 685
Suspicious conduct, not denied nor explained by Husband, provided basis for trial court finding of adultery.
2000---Hughes v. Hughes, 33 Va. App. 141
One who alleges adultery as a grounds of divorce has the burden of proving it by clear and convincing evidence.
1998---Romero v. Colbow, 27 Va. App. 81
Photos of partially clad Wife in boyfriend's home, kissing, etc. do not establish adultery.
1995--- Snyder v. Snyder, Va. Ct. of Appeals, Unpublished, No. 2147-94-4
Where husband and his alleged paramour both denied having a sexual relationship, husband subleased part of the woman’s house, husband hired the woman for a position at his school, husband called the woman several times to discuss his father’s death, and wife’s investigator saw only one brief kiss between the two, adultery was not established by clear and convincing evidence.
1993---Gamer v. Gamer, 16 Va. App. 335
Court of Appeals upheld trial court's award of no-fault divorce, despite the trial court's err in finding the evidence insufficient to prove husband's adultery. The record failed to show that the adulterous conduct had any economic impact on the marital property. Therefore, the Court of Appeals declined to disturb the no-fault decree.
1989---Derby v. Derby, 8 Va. App. 19
Trial court did not err holding that the following was clear and convincing evidence of wife’s adultery: a private investigator’s testimony that (1) wife had spent several nights together with her paramour in the same house; (2) that wife and the paramour had engaged in affectionate behavior in public, such as massaging each other’s neck, entwining arms, etc.; and (3) wife’s admissions that (i) she and her paramour were close friends who saw each other about three times a week, and (ii) she visited her paramour’s relatives in North Carolina with him.
The fact that adultery occurs after the separation of the parties does not lead inexorably to the conclusion that the adultery had nothing to do with the breakdown of the marriage. The commission of adultery during the separation period is the one act most likely to frustrate and prevent a reconciliation.
1989---Cutlip v. Cutlip, 8 Va. App. 618
In order to prove adultery, evidence need not be unequivocal, but must be clear and convincing such that it will produce in the mind of the trier of facts a firm belief or conviction as to the allegation. The trial court erred in finding husband guilty of adultery where evidence established only that, since wife’s condonation of his prior adultery, husband had spent long hours away from home, had seen his paramour again in a public place on one evening, and had lied to wife about spending the night with husband’s brother on that same evening. There was no evidence that husband was alone with the paramour on the night in question. While the evidence created a strong suspicion of guilt, it was not “clear and convincing.”
1983---Coe v. Coe, 225 Va. 616
The party alleging adultery as grounds for divorce has the burden of proving adultery by clear and convincing evidence, but does not have to prove adultery beyond all doubt. Although the allegation of adultery was denied by the defendant, the record contained no testimony by her or that of any witness which contradicted or denied the testimony given by the plaintiff and his detective regarding the alleged affair.
1936--- Martin v. Martin , 166 Va. 109
Evidence of adultery should be clear. Suspicious circumstances are not enough, but confirmation beyond a reasonable doubt is not required. Necessarily evidence is usually circumstantial. Few offenses are less susceptible of positive proof. Common sense and common experience of men are our best guides.
Evidence of private detectives should be examined with utmost care. Uncorroborated it is seldom sufficient to sustain any judgment. The private detective is a “most dangerous instrument.”
1895---Miller v. Miller, 92 Va. 196
The trial court did not err in sustaining husband’s demurrer to wife’s complaint alleging adultery, where wife stated in her complaint only that “husband has been guilty of adultery on many occasions, and that she has not lived or cohabited with him since she so learned that fact.” The only safe and prudent course is to require the charge, whether of crimination or recrimination, to be stated in the pleadings and in the issues in such a manner that the adverse party may be prepared to meet it on trial. Though the name of the person with whom the adultery was committed need not be given, the adultery must be charged with reasonable certainty as to time and place. Neither party has the right to make such a charge against the other on mere suspicion, relying on being able to fish up testimony before trial to support the allegation.
2003---Shaffer v. Shaffer, Va. Ct. of Appeals, Unpublished, No. 3329-02-4
By engaging in sexual intercourse with multiple paramours without any form of protection against sexually transmitted diseases, and then continuing to have sex with his unsuspecting wife, husband rendered continued cohabitation "intolerable" for constructive desertion purposes.
1988--- Seehorn v. Seehorn, 7 Va. App. 375
Evidence of excessive consumption of alcohol alone does not, as a matter of law, render cohabitation unsafe by endangering life or health, and therefore, does not support a claim of constructive desertion.
1987---Jamison v. Jamison, 3 Va. App. 644
Where sexual privileges are willfully withdrawn without just cause or excuse, a finding of desertion does not require the breach and neglect of all marital duties, but only the breach of other significant marital duties, which results in the practical destruction of home life in every true sense. The party so deserted is not required to remove himself from the house in order to maintain the claim for desertion.
1985---Brawand v. Brawand, 1 Va. App. 305
Even though Husband’s conduct did not constitute cruelty to support Wife’s constructive desertion claim, it nonetheless constituted legal justification for Wife to leave without being guilty of desertion.
1920---Ringgold v. Ringgold, 128 Va. 485
Desertion is a breach of matrimonial duty, and is composed first, of the actual breaking off of the matrimonial cohabitation, and secondly, an intent to desert in the mind of the offender. But, where a husband pushes the wife away from him, rejects her appeals for reconciliation and restitution of marital rights, tells her time and time again without reasonable excuse that she cannot return unless she subjects herself to an indefinite period of repent, the length of which is judged solely on the whim of the husband, husband's continued financial support and willingness to allow the wife to sleep in the same house will not be enough to save him from a charge of desertion.
2006---Kennedy v. Kennedy, Va. Ct. of Appeals, Unpublished, No. 0218-06-2
Trial court did not err in granting Wife a divorce on the grounds of cruelty. Husband assaulted Wife, throwing her across the bed and onto the floor, causing her to sustain serious injuries. This single act of physical violence, which was corroborated, constituted cruelty.
2003---Shaffer v. Shaffer, Va. Ct. of Appeals, Unpublished, No. 3329-02-4
By engaging in sexual intercourse with multiple paramours without any form of protection against sexually transmitted diseases, and then continuing to have sex with his unsuspecting wife, husband rendered continued cohabitation "unsafe" for cruelty purposes.
1989---Davis v. Davis, 8 Va. App. 12
The general rule in Virginia is that a single act of physical cruelty will constitute grounds for divorce if it is so severe and atrocious as to endanger life, if it indicates an intention to do serious bodily harm, if it causes reasonable apprehension of serious danger in the future, or if the precedent or attendant circumstances show that the acts are likely to be repeated. Husband's shooting of wife in the back was so severe and atrocious that it endangered her life, and thus constituted cruelty for which divorce could be decreed.
1985---Brawand v. Brawand, 1 Va. App. 305
Even though Husband’s conduct did not constitute cruelty to support Wife’s constructive desertion claim, it nonetheless constituted legal justification for Wife to leave without being guilty of desertion.
1961---Sollie v. Sollie, 202 Va. 855
Angry words, course and abusive language, humiliating insults, and annoyances in all forms that malice can suggest, may as effectually endanger life or health as personal violence, and afford grounds of relief to the injured spouse. Cruelty is cumulative, admitting of degrees and augmented by additions, so that it may be condoned and even forgiven for a time, and up to a certain point, without any bar to bringing it all forward when a continuance of it has rendered it no longer condonable.
1958---Hoffecker v. Hoffecker, 200 Va. 119
Habitual drunkenness or use of narcotic drugs is generally not regarded, of itself, as a ground for divorce. However, such habits, together with misconduct caused directly or indirectly by habitual drunkenness or existing conjunctively therewith may constitute cruelty.
1957--- Baytop v. Baytop , 199 Va. 388
Testimony by wife and her family members, and exhibits showing that husband never established a home for his wife, that he humiliated her, was often rude, that he became cold and indifferent toward her, that he engaged in illicit relations with another woman, and that such conduct over time caused wife to suffer increased anxiety and loss of weight was sufficient to sustain a divorce based on cruelty, though no physical cruelty was inflicted.
1957---Beers v. Beers, 198 Va. 682
Mere austerity of temper, petulance of manner, rudeness of language, want of civil attention and accommodation, or even occasional sallies of passion that do not threaten harm, although they be high offenses against morality in the married state, do not amount to legal cruelty, (citing Latham v. Latham, 71 Va. 110 (1878)).
1956---DeMott v. DeMott, 198 Va. 22
Cruelty which authorizes divorce is conduct that tends to bodily harm, and thus renders cohabitation unsafe; or that involves danger to life, limb or health. It is generally held that a single act of cruelty does not constitute ground for divorce, unless it is so severe and atrocious as to endanger life, or unless the act indicates an intention to do serious bodily harm or causes reasonable apprehension of serious danger in the future, or precedent or attendant circumstances show that the acts are likely to be repeated.
The trial court did not err in refusing to grant wife a divorce based on wife's testimony of a single incident in which husband grabbed her, threw her against a wall, struck her, and threatened her with a butcher knife. The court found that the assault, as reprehensible and unwarranted as it was, did not do her serious bodily harm or cause her reasonable apprehension of serious danger in the future, as evidenced by wife's failure to leave the residence until five days after the incident. Furthermore, there was no evidence that the husband had previously been guilty of such repeated acts of mistreatment that she could not with safety to her person and health continue to live with him.
1953---Upchurch v. Upchurch, 194 Va. 990
Mere financial difficulties arising from extravagance and lack of pecuniary responsibility do not amount to legal cruelty and do not constitute grounds for divorce.
1920---Ringgold v. Ringgold, 128 Va. 485
Mental anguish, and repeated and unrelenting neglect and humiliation may be as bad as physical wounds and bruises, and may be visited upon an unoffending spouse in such degree as to amount to cruelty. A spouse, without physical violence, actual or threatened, may render the marriage impossible to be endured.
1987---Graves v. Graves, 4 Va. App. 326
Trial court did not err in finding that husband had not proved desertion. After an argument, wife left the home with only a jacket and her purse, and spent the night at her friend’s home. While there, wife told the parties’ minor child via telephone that she “may or may not be back in the course of time.” When wife returned to the home the next morning, husband refused to allow her into the home, and physically assaulted her in removing her from the home. Wife refused to return after that incident. The trial court properly held that wife’s overnight stay away from the residence and her statement to the parties’ child did not evidence a clear intent to desert the marriage, proof of which is required for a claim of desertion.
1987---Jamison v. Jamison, 3 Va. App. 644
Where sexual privileges are willfully withdrawn without just cause or excuse, a finding of desertion does not require the breach and neglect of all marital duties, but only the breach of other significant marital duties, which results in the practical destruction of home life in every true sense. The party so deserted is not required to remove himself from the house in order to maintain the claim for desertion.
1987--- Wagner v. Wagner , 4 Va. App. 397
Trial court erred in awarding husband a divorce based on desertion where wife established that husband agreed to her departure from the marital home. When a separation of husband and wife is by agreement or where the husband assents to, or acquiesces in, the wife’s separation from him, he cannot maintain a suit for divorce on the ground of desertion. A separation by mutual consent does not amount to desertion or abandonment in the law.
1986---Petachenko v. Petachenko, 232 Va. 296
A single act of sexual intercourse by the parties, without more, does not constitute reconciliation or preclude the continuance of a claim for desertion. The "matrimonial cohabitation" consists of more than sexual relations. It also imports the continuing condition of living together and carrying out the mutual responsibilities of the marital relationship. To end desertion, the parties must resume the performance of marital duties with the intent to end the desertion. Not only is resumption of sexual relations a factor, the parties also must resume the performance of marital duties while living together on a continuous basis.
1986---Bacon v. Bacon, 3 Va. App. 484
The party claiming desertion as grounds for divorce has the burden of proving desertion by a preponderance of the evidence.
1985---Brawand v. Brawand, 1 Va. App. 305
Even though Husband’s conduct did not constitute cruelty to support Wife’s constructive desertion claim, it nonetheless constituted legal justification for Wife to leave without being guilty of desertion.
2010--- Andrews v. Creacey, et. al., 56 VA. App. 606
Once one party entertains an intent to separate, and the parties have lived separate and apart without any cohabitation and without interruption for one year, the grounds of divorce are complete. It is not relevant whether the party entertaining the intent to separate remained competent during the entire one-year separation period. The trial court did not err in finding that husband had the intention to separate from wife, despite his guardian’s statements that when he later interviewed husband, husband seemed to “go along with whatever was represented” and didn’t exhibit “a whole lot of understanding.” Husband’s letter to the guardian dated prior to the guardian’s interview stated that he wanted a divorce, and enumerated several reasons therefore. Despite conflicting testimony as to statements made by husband to wife after he wrote his letter to the guardian, the trial court was entitled to evaluate the credibility of the witnesses and accept the testimony of the guardian regarding husband’s intent.
2010--- Wynn v. Wynn, Va. Ct. of Appeals, Unpublished, No. 2400-09-1
Trial court did not abuse discretion in implicitly finding that the parties separated when wife moved out of the marital residence, despite the fact that husband allowed her to return temporarily three years later after learning that she had been sleeping in her car. Upon wife’s return, the parties slept in separate bedrooms and wife paid husband rent. Thus, the trial court’s finding that the marriage was undergoing an irreconcilable breakdown at all times since Wife initially left the residence was not error.
2002---Bchara v. Bchara, 38 Va. App. 302
Wife and Husband were separated in the same home even though they ate together and maintained a clean home.
1987---Graves v. Graves, 4 Va. App. 326
The trial court erred in granting wife a divorce based upon a one-year separation, where the last hearing regarding the separation prior to the entry of the order occurred one day before the one-year period expired. Because no evidence regarding the maintenance of the separation was heard after the expiration of the one-year separation, the trial court lacked jurisdiction to grant the final divorce.
1986---Petachenko v. Petachenko, 232 Va. 296
A single act of voluntary sexual intercourse does not, alone, automatically terminate a separation.
1993---Bandas v. Bandas, 16 Va. App. 427
“Cohabitation” is a bundle of duties, however many more of these duties, responsibilities, rights and incidents are missing in the situation where one of the parties is incarcerated and the other is not. Va. Code §20-91(3) itself presumes that incarceration terminates cohabitation. By use of the word “resumed” in the statute, the legislature has clearly expressed its judgment that in case of confinement for a felony, cohabitation has ceased, and having ceased, must be “voluntarily” resumed. Wife did not “voluntarily resume” cohabitation with husband, as contemplated pursuant to Va. Code §20-91(3), by visiting husband in prison.
2007---Jett v. Jett, Va. Ct. of Appeals, Unpublished, No. 2862-06-4
Husband contended that the trial court lacked subject matter jurisdiction to enter a spousal support award in its final divorce decree because Wife’s bill of complaint for divorce did not ask the trial court to award spousal support. The Court of Appeals held that the question Husband raised was related solely to the court’s ability to exercise the subject matter jurisdiction granted by statute, it was waivable, and Husband waived his opportunity to challenge this aspect of the trial court’s spousal support award by failing to object to the entry of the final decree in a timely fashion.
2007---Motley v. Motley, Va. Ct. of Appeals, Unpublished, No. 2551-06-1
Nothing in Va. Code §20-91(A)(9)(a) requires that the one-year separation period must occur prior to the filing of the bill of complaint in order for the trial court to have jurisdiction to enter a final decree of divorce. Wife’s initial complaint alleged a separation date more than one year prior to filing.
2000---Adoteye v. Adoteye, 32 Va. App. 221
Divorce action filed by a foreign national in Virginia on a G-4 (non-immigration) visa is dismissed because she is not a bona fide resident of Virginia as required by Va. Code §20-97.
2007---Polemeni v. Polemeni, Va. Ct. of Appeals, Unpublished, No. 1682-06-1
Trial court did not err in awarding divorce on the grounds of adultery. Wife admitted to having an adulterous relationship during the marriage. Husband condoned the adultery but it was conditioned upon her cessation of her contact with the boyfriend and remaining in New York, and Wife’s moving back to Virginia and resuming relations with the boyfriend nullified the condonation.
1989---Cutlip v. Cutlip, 8 Va. App. 618
Condonation is defined to be the remission, by one of the married parties, of an offense which he knows the other has committed against the marriage, on the condition of being continually afterward treated by the other with conjugal kindness. Conjugal kindness requires that the guilty spouse not only refrain from a repetition of the offense forgiven, but also refrain committing any other offense which falls within the cognizance of a matrimonial court.
Condoned adultery is revived where the guilty party resumes association with his paramour. The trial court erred in finding that husband revived previously-condoned adultery where the evidence established only that, since wife’s initial condonation, husband had spent long hours away from home, had seen his paramour again in a public place, and had lied to wife about his whereabouts on the night he saw the paramour. Although revival does not require strict proof of an actual repetition of the offense, the evidence here, while suspicious, was not inconsistent with husband’s innocence.
1986---Petachenko v. Petachenko, 232 Va. 296
While a single voluntary act of sexual intercourse by an innocent spouse condones a known offense of adultery, it does not suffice as condonation of desertion.
1957--- Baytop v. Baytop , 199 Va. 388
That wife had sexual relations with husband, upon his insistence, the night before the parties separated did not constitute condonation of husband’s long-continued course of mistreatment and emotional cruelty. That conclusion was supported by evidence that, upon wife’s return from church the next morning, husband did nothing to indicate a desire to have wife remain in the house or that he had any intention of treating her better in the future.
1936--- Martin v. Martin , 166 Va. 109
Condonation is conditional forgiveness. Knowledge is necessary, as one cannot condone what one does not know. Moreover, it is essential that there be no repetition of the offense. Repetition revives the right to complain of an injury forgiven.
1985---Brawand v. Brawand, 1 Va. App. 305
Even though Husband’s conduct did not constitute cruelty to support Wife’s constructive desertion claim, it nonetheless constituted legal justification for Wife to leave without being guilty of desertion.
2003---Jacobsen v. Jacobsen, 41 Va. App. 582
The party seeking to avoid an agreement based on a defense of reconciliation has the burden of proving that the reconciliation was genuine. Reconciliation is the resumption of one's marital status by voluntarily living together, openly as husband and wife. It is more than simply cohabitation or the observance of civility; it comprehends a fresh start and genuine effort by both parties. Resumption of sexual relations is merely a factor. Reconciliation must exhibit proof that the parties intend to live together as husband and wife and take up their respective roles in the relationship. It must ordinarily appear the parties have established a home and that they live together in it in the normal relationship of husband and wife. Normal married life must be viewed in the context of a couple's married life together as it existed before they separated.
The trial court did not err in finding that the parties' purported reconciliation was a sham, perpetrated by husband for the sole purpose of avoiding compliance with a prior settlement agreement. Husband and wife cohabitated for only twenty-nine sporadic days over a three-month period, during which husband continually called his paramour, told his paramour that he loved her, went on a camping trip with his paramour, admitted to "possibly" having sex with his paramour, dropped wife from his insurance, and listed his address on new resumes and business cards as that of his paramour in Ohio rather than the marital residence in Virginia.
1989---Davis v. Davis, 8 Va. App. 12
Although husband proved that wife willfully deserted him, the defense of recrimination, based on husband's shooting wife in the back ten days after the separation of the parties, barred the granting of a divorce based on desertion to husband. Although wife proved cruelty by husband, the defense of recrimination, based on her willful desertion of the marriage ten days prior to the shooting, barred the granting of a divorce based on cruelty to wife. Because both parties were at fault, the trial court properly refused to grant either a fault-based divorce and instead granted the divorce based upon a one-year separation.
1895---Miller v. Miller, 92 Va. 196
The trial court did not err in sustaining husband’s demurrer to wife’s complaint alleging adultery, where wife stated in her complaint only that “husband has been guilty of adultery on many occasions, and that she has not lived or cohabited with him since she so learned that fact.” The only safe and prudent course is to require the charge, whether of crimination or recrimination, to be stated in the pleadings and in the issues in such a manner that the adverse party may be prepared to meet it on trial. Though the name of the person with whom the adultery was committed need not be given, the adultery must be charged with reasonable certainty as to time and place. Neither party has the right to make such a charge against the other on mere suspicion, relying on being able to fish up testimony before trial to support the allegation.