Divorce (Absolute and Limited)
Under Virginia Law, you have the right to represent yourself in all legal cases, including divorce.
The legal term for representing yourself is "pro se," pronounced "pro say") which is Latin for "on your own behalf." Representing yourself is not a good idea for everyone. It is important to understand that by representing yourself, you may be giving up important rights. It is very important for you to find out if your spouse has a pension, retirement account, insurance or other significant property before you decide whether to file your own divorce. If you do not ask for such things in the divorce, you will give them up forever.
Within Virginia, the circuit courts have jurisdiction to hear divorce cases. Generally, the circuit court with jurisdiction for your case is the circuit court in the county where you live or the circuit court in the county where your spouse lives. When you file the relevant papers, you must have stated your grounds for that court to have jurisdiction. If not stated correctly, your spouse could file a motion to dismiss your case.
After you file your papers, your spouse has 21 days, to respond to your request for divorce. If your spouse fails to respond, the court will proceed with the divorce so long as service of process has been completed correctly. If service wasn't obtained, Virginia law allows for "posting" the Subpoena and Complaint on the defendant's door if no one is home. Whether or not your spouse responds, you and your corroborative witness will have to appear before a Commissioner in Chancery who will conduct a hearing scheduled by the clerk of the Circuit Court or for depositions in your attorney’s office. After your corroborative witness testifies and you have presented other evidence, and if you’re spouse answers or shows up, then your spouse will also have a chance to do the same. At the end of the hearing, the Commissioner will file a report with the clerk and notify you of the filing time. It could take two days to two years, but the normal time is 30 days. After the Commissioner's report is filed, mail your Final Decree, to the Court Clerk and ask that it be sent to a judge for signing. The Judge should sign it within a few days.
In order to start the divorce process you must file a complaint in the circuit court where you or your spouse lives. In your complaint or at the hearing, you will have to meet the residency requirement for the ground you specified above. Divorce laws apply only to the residents of a state, and each state has its own residency requirements. For the ground of voluntary separation without cohabitation, the residency requirement is six months in Virginia. If there are no children from the marriage, you must be separated for a minimum of six months and have a written property settlement agreement before you may file for divorce. If there are children from the marriage, you must be separated a minimum of one year before you may file for divorce. You do not file a separation agreement with the Court. The law absolutely requires that you or your spouse has been a resident for the stated period of time immediately prior to and at the time that you file for a divorce. For example, you cannot have lived in Virginia for six months before moving to Nebraska for another six months and then come back to Virginia to file for a divorce. However, after you have filed, you can move anywhere in the world.
Same State, Different Addresses
You do not have to remain at the same address to fulfill your residency requirement. You can move anywhere within the Commonwealth from which you are filing. The forms do not require you to list all addresses, but you should be prepared to prove where you lived during the separation in the final hearing.
Proof of Residency
Your corroborating witness substantiates your residency. The testimony is all that most courts require verifying residency. But cases have been dismissed and even overturned because of improper proof of residency. To be safe, bring copies of your leases with you to court if you have moved a lot. Some Virginia counties may require a sheriff's proof of residency, and in all Northern Virginia jurisdictions you may have to provide a valid Virginia driver's license bearing your present address for review by the commissioner or judge. However, emergency, custody or other matters may be filed in Virginia without six months residency.
Resident vs. Non-Resident
A court may take on a divorce proceeding even if your spouse is not a resident of Virginia. If you or your spouse moves to another state after the divorce has been filed, you may still have your case heard in Virginia. However, you must prove that you are not living in a state temporarily in order to get a divorce.
How to Establish Residency
Register to vote. Get a driver's license. Get a job. Open charge accounts. Register your car. Take out a library card. The list is endless. But whatever you do, do not maintain a residence in another state that could imply that you do not intend to remain in the state from which you file. Virginia law requires that you be a "domiciliary" as well as a resident of the Commonwealth. This means that you live in Virginia with the intent to remain there. Proof of domicile is through you and your witness' testimony at the hearing.
Virginia has counties that govern which court your divorce will take place in. This is called venue. In Virginia, you can file suit in the county where you last lived together as husband and wife, in the county where the defendant resides if he or she is still a resident of the state, or in the county where you reside if the defendant is a nonresident.
Divorce, Separation and Annulment
Divorce is the ending of a marriage ordered by a court. In Virginia, however, you could ask for two types of divorce: absolute and limited. When the court decrees (orders) an absolute divorce, it means that the divorce is permanent, permits remarriage, and terminates property claims. This is known as a "divorce a vinculo matrimonii" (meaning from the bonds of matrimony). When the court decrees a limited divorce, it means that the divorce is not permanent, does not permit remarriage, and does not terminate property claims (but the limited divorce may settle these claims); it serves only to legalize the separation and provide for support. This is known as a "divorce a mensa et thoro" (from bed and board). There is no such term as a legal separation in Virginia. You are not required to get a limited divorce before you can get an absolute divorce - there is a common misconception that you need a legal separation in order to get a divorce. This is not the case. Since divorce in Virginia is statutory, the law is located in The Virginia Annotated Code under Chapter 20.
Annulment establishes that your marital status never existed. The court will declare that you were never married. Because the courts rarely grant an annulment, you should think twice about using this route if you want to end your marriage. The court may look to, but is not limited to, the legitimacy of children and the preservation of the sanctity of marriage. Because of these considerations a court will look to granting a divorce instead of an annulment.
There are three principal players involved in your marriage that will also be involved in your divorce: you, your spouse, and the Commonwealth. You cannot simply break up, saddle your charger, and ride off into the sunset. Among other legal considerations, you have to give the Commonwealth an acceptable reason why you should be allowed to break up. The reason is known as the ground for your divorce. Over the years each state has enacted legislation that governs acceptable grounds.
There are different grounds for a divorce, separation, and annulment. In the case of an absolute divorce, there are five (5) grounds for a court to grant an absolute divorce:
Adultery, Sodomy, Buggery. No specific waiting period if residency requirement has been fulfilled.
Felony Conviction. At least one year imprisonment.
Cruelty. One year of separation for such act. Cruelty that will support a divorce is anything that tends to cause bodily harm and renders cohabitation unsafe or that involves danger to life, the person, or health. A single act of cruelty will not support divorce on this ground.
Desertion. One year of separation for each act.
Voluntary separation. Either six months with a valid separation and no minor children agreement, or one year if there is no agreement or you have minor children.
Any one of these grounds, if proved, will result in the complete dissolution of the marriage (look to each ground in order to find out how to prove that ground). You can file for divorce under more than one ground: for instance, adultery and desertion.
In the case of a limited divorce, there are four (4) grounds for a court to grant a limited divorce:
Cruelty (against the child of the complaining party and/or against the complaining party);
Reasonable apprehension of bodily hurt
Desertion (construction and actual);
Limited divorces are usually based on either willful desertion or cruelty. Although any one of these grounds is enough for a limited divorce, a limited divorce will not completely terminate your marital status. In order to do so, you must either seek an absolute divorce or an annulment.
In Virginia there are two types of annulment. In the first type the marriage is declared void ab initio, or from its inception, as though it had never existed. You do not legally have to go to court to have the marriage declared void ab initio, although it's a good idea to do so. In the case of an annulment, a marriage must be "totally void" in order for it to be considered annulled.
There are two characteristics of a "totally void" marriage:
The marriage posses some defect rendering it susceptible to collateral attack (some evidence that shows the marriage never happened or should have never happened) even after the death of one or both spouses and no direct step or proceeding to annul is necessary (although the latter may be desirable).
One such defect is if your spouse was formally married to someone else and still has not divorced that person. Your marriage to this spouse is considered totally void. The grounds for a void marriage are bigamy, marriage between an ancestor and a descendant, brother and sister, aunt and nephew, and uncle and niece.
In Virginia, the grounds for voidable annulments of marriage are bigamy; impotency at the time of marriage; conviction of a felony prior to marriage, but not discovered until after; the wife's pregnancy at the time of the marriage with someone else's child-a fact unknown to her husband; the husband's siring of a child by another woman within ten months after the marriage; or the party's having been (without the knowledge of the other) a prostitute before the marriage. If the parties are under the consent age of 16 the marriage, may be declared void by the court. Most annulments also can be obtained before the expiration of two years after the marriage ceremony in most cases. If you want an annulment, move quickly.
Although annulments may be granted, the preference of the court is not to annul, but for the parties to divorce. Also, any marriage that is expressly prohibited by statute is void by annulment.
Waiting Periods for Absolute Divorce
Under each ground for an absolute divorce, there is a provision for when you can bring the lawsuit against your spouse to the court. However, if you claim that your spouse committed adultery, you can bring the action for absolute divorce at any time. As long as you can fulfill the residency requirement (discussed in the residency section) there is no time limit when claiming adultery. In a claim of desertion, however, you may have a time-limit problem. Whether the desertion was actual or constructive, you must wait a year after the event of desertion before you file for an absolute divorce. For a voluntary separation, you must have been voluntarily separated for at least 6 months if you have a valid separation agreement and there are no minor children. If you don't have a separation agreement and there are minor children, you must wait one year. If your spouse has been convicted not simply charged with a felony and has served 12 months of that sentence, you can then file for absolute divorce, provided that you don't have sexual intercourse after confinement.
The closet the Commonwealth of Virginia has to a "no fault" divorce is known as voluntary separation. It usually means that you and your spouse have separated after mutually and voluntarily agreeing that you no longer wish to live together as husband and wife and that there is no hope for reconciliation. Your spouse cannot threaten or black mail you into leaving on this ground; you separate because you want to. To get a divorce on this ground you have to be separated for one year if you have minor children and or nor separation agreement; or six months if you do not have minor children and you have a valid separation agreement. In Virginia you can be living separate and apart under the same roof, but this is difficult to prove, and you will have to prove it at the hearing.
Adultery is sexual intercourse between a married person and someone other than the spouse. In Virginia, sodomy is a ground for divorce, as well as buggery (anal intercourse). A divorce will not be granted if it occurred more than five years before the institution of the suit, or if it was committed by the connivance of the party alleging the act.
How to Prove Adultery
There probably is no such thing as a pleasant adultery case, because names, dates, places, paramours, and the like have to be brought out in the open. If your spouse no longer cares about what you know and is open about the affair, you're lucky. You can then catch your spouse flagrante delicto, which means you have your spouse in the flagrant wrong and may not have to worry about hiring detectives. However, you may still need a detective to prove your case in court. There is still a need for a corroborative witness, such as a mutual friend or neighbor, who has no stake in the matter except telling the court what he (she) witnessed. Most adultery cases are proven by circumstantial evidence, which means that you have to establish that your spouse had the disposition and opportunity to commit adultery. To establish adultery, there must be clear, positive, and convincing evidence.
Public displays of affection, such as hand holding, kissing, and hugging, between the guilty spouse and the paramour is generally sufficient evidence to indicate an adulterous disposition. Showing that your spouse was seen entering the paramour’s apartment at 11 P.M. and not coming out until 8 A.M. the following morning and that they were alone may prove opportunity. If you can only prove disposition but not opportunity, the courts may not allow your divorce because the court may reason that it is just mere speculation. The same is true if you only show that there was opportunity, but cannot prove disposition. When you think about it, this seems to make sense. Evidence must be more than strongly suspicious. Post-separation adultery may also be the basis for the deserting party to obtain a divorce based upon adultery.
Naming the Co-Respondent
Sometimes known as a paramour, the co-respondent is the person whom you charge as having committed adultery with your spouse. The co-respondent has the right to hire a lawyer and file an answer to your complaint. Naming co-respondents can get sticky, particularly if your facts are incorrect. You might be damaging the reputation of an innocent person.
Adulterers are not equal under the blanket of the law. In Virginia, adultery may impact custody if the adultery is proven to have harmed or impaired the children. Adultery does not necessarily affect alimony awards in Virginia. It will, however, be a factor for consideration in awarding alimony.
Generally, if you knew your spouse committed adultery but you continued to live and cohabit with your spouse, then adultery cannot be used as a ground. Once you resume marital relations, after you learned of the adulterous act, the courts feel that you have forgiven, or "condoned," the act. But, if your spouse starts having affairs again, you can then sue on grounds of adultery. Or, if your spouse has had several affairs and you knew of and condoned only one, you may file on adultery regarding the newly discovered affairs.
In Virginia, a divorce will not be granted on the ground of adultery, sodomy, or buggery of the act occurred more than five years before the start of the suit, or if one spouse connived to get the other spouse to have an affair and commit adultery.
If your spouse has been convicted of, not simply charged with a crime, that is a ground for divorce in Virginia. The conviction must be for a felony and the spouse has to serve be sentenced to confinement for more than one year, and confined for the felony after the conviction. There must be no cohabitation after knowledge of this confinement.
Desertion and Abandonment
For all practical purposes, desertion and abandonment are one and the same. There are two elements that have to be present in order to constitute desertion: the willful desire or the intent to desert and the cutting off of the marital relationship. In Virginia, there is no specific period during which the desertion must continue, but you must wait a year before filing under this ground.
There are two types of desertion-actual desertion and constructive desertion.
When your spouse packs bags, books, and toothpaste, walks out the door, moves into another apartment, and stays there, he or she is guilty of actual desertion. The spouse voluntarily leaves and has no plans to return except perhaps to pick up a forgotten belonging.
You also can be deserted even if your spouse does not leave. If your spouse's behavior is so cruel or despicable that you find yourself dialing suicide prevention, you can leave and charge your spouse with constructive desertion. Constructive desertion is basically defined as one person leaving the relationship-not necessarily the home. The following are some cases of marital misconduct that have been applied to constructive desertion:
Willful refusal of sex, without just cause and nonperformance of other marital duties as to practically destroy the home life. The denial of sex alone does not constitute desertion. The spouse also has to stop carrying out the mutual responsibilities of the marital relationship.
Conduct that endangers a spouse's life, safety, health, and even self-respect (although an isolated assault or two will not necessarily constitute cruelty unless the act was particularly severe and atrocious).
One spouse's failure to move if, for example, the other gets a job transfer. The exception is if one spouse's choice of domicile is unsafe or unsuitable for the other.
As A Virginia case has stated, 'The misconduct of an offending spouse which will justify the other in leaving must be so serious that it makes the relationship intolerable or unendurable."
If the Deserter Returns
Your spouse has left you, spent six months chasing butterflies, and suddenly wakes up one morning and decides that you are the one after all. In good faith, your spouse shows up at your doorstep and begs you to forgive and forget. To end desertion in Virginia, you and your spouse must resume marital cohabitation and you must do so with the intent to end the desertion.
The Commonwealth of Virginia has a "no fault" divorce known as voluntary separation. It usually means that you and your spouse have separated after mutually and voluntarily agreeing that you no longer wish to live together as husband and wife and that there is no hope for a reconciliation. Your spouse cannot threaten or blackmail you into leaving; you separate because you both want to. To get a divorce on this ground you have to be separated without interruption (not even one night) without cohabitation (not a single incident of sexual intercourse) for one year (six months if no children) and there is no hope of reconciliation. Remember though, if this is not a mutual and voluntary situation you will have to use another ground to get a divorce.
There are two types of voluntary separation: one for limited divorce and for absolute divorce. Remember that a limited divorce does not completely end your marriage.
In Virginia, a legal separation may be granted under the grounds of cruelty, reasonable apprehension of bodily hurt, and willful abandonment or desertion.
Separation without Cohabitation
If your spouse wants a separation and you do not, it is still possible to file under this ground, but the wait is longer. Virginia requires two years of living apart. Whether the separation is voluntary or not so voluntary, it has to be continuous. This does not mean that you and your spouse can't meet for lunch or dinner on occasion, but it does mean that you cannot have sexual relations with each other. If a candlelight dinner intended to discuss your children's report cards ends up kindling your sexual desire for each other, and you follow your passions into bed, then your waiting period has to start all over again. It will begin the day after your bedroom encounter even if you've been on good behavior for 12 months. Sex between you and your spouse is strictly forbidden during your waiting period. Sex with others can be a problem, too; the grounds for your divorce could change.
In Virginia, it is not absolutely necessary for the couple to live under separate roofs even though they file for voluntary separation. If you and your spouse chose to remain under one roof while living separate and apart you will want at least one independent witness (such as a very frequent visitor) to testify as to your living separate and apart with no cohabitation for the period of time required by the Commonwealth.
Grounds for Limited Divorce or Legal Separation
Many people who, for personal or religious reasons, do not wish to obtain a full divorce can get a "limited divorce" instead. Virginia has no legal separation. A "Limited Divorce" in Virginia is similar to what is called a "Legal Separation" on other states. Limited divorces are very much like an absolute divorce with the major difference being that the parties cannot remarry. You are, in effect, still legally married at the same time that you are legally separated.
In order to obtain a limited divorce in Virginia, you must meet residency requirements, grounds, and other legally prescribed laws just as you have to in a case for absolute divorce. Limited divorces can also involve property settlements, alimony, and child support and custody.
The court may require that the parties participate in reconciliation efforts.
The Virginia courts may grant a limited divorce even though you are seeking an absolute divorce. The courts also may decree these divorces forever or for a limited time only.
Proving Grounds for Limited Divorce or Legal Separation
In order to prove the grounds for a limited divorce, you must go through the same processes of proof as you would in a case for an absolute divorce. The courts give the same serious weight to limited divorces as they do to absolute divorces.
Recrimination is expressly inapplicable to no-fault divorce under section 20-91(9). A one-year period of separation does not constitute a "ground for divorce" constituting recrimination.