A typical divorce involves a separation, the filing of a complaint for divorce, service of process, responsive pleadings by the other party, discovery, settlement or trial, and the entry of a divorce order. Virginia law allows for both “fault-based” and “no-fault divorces.” Divorce can be granted on fault grounds including adultery, cruelty, willful desertion or abandonment, or conviction of a felony involving at least one year of confinement. While an action for divorce based upon adultery can be filed immediately, the remaining fault grounds require a one-year period of separation.
Divorce based upon having lived separate and apart, otherwise known as “no-fault divorce,” can be granted when parties have been separated, without interruption, for one year or more. However, if the parties have no minor children, either born of the marriage or adopted, and have entered into a written settlement agreement resolving all divorce-related issues, a no-fault divorce may be granted when the parties have been separated for only six-months.
The waiting period for a divorce begins to run once the parties separate and at least one party has the intent to end the marriage. No agreement or court order is necessary to create or memorialize the separation. If there is a dispute about whether the parties have been separated for the required time period, a trial court will consider 1) when at least one party formed and communicated the intent to end the marriage, and 2) when the parties stopped behaving as husband and wife (sexual relations, cooking and eating together, doing laundry and other normal household tasks on one another’s behalf, etc.) and when the parties discontinued holding themselves out to third parties as husband and wife (attending social functions together, etc.). In some cases, parties have been found to have been separated despite continuing to reside under the same roof. Conversely, parties are not separated for divorce purposes if they are living apart but neither party has formed and communicated the intent to divorce.
The following are some common legal and factual issues related to divorce:
- Where should a divorce case be filed?
- How long does it take to get a final divorce?
- Are there different consequences based upon different divorce grounds?
- What happens if both spouses are guilty of fault?
- If one spouse leaves the marital residence, is he or she guilty of desertion?
- Can a divorce be based upon mental cruelty or verbal abuse?
- Is the divorce process different if one spouse is not a citizen of the United States?
- What personal information is required by the court to obtain a divorce?
- Do the parties have to appear in court before a judge to obtain a divorce?
- What evidence is required to obtain a divorce?
- Do I need to have an attorney to get a divorce?
- When does my divorce become final?
To view statutory law relevant to divorce, follow this link to Code Sections
To view case law relevant to divorce, follow this link to the Case Finder
To obtain legal advice concerning divorce or other family law issues, please contact Raynor & Farmer, P.C.