Chapter 7

Grounds for Divorce

Marriage in america is a legal status recognized by the state. To end a marriage, a divorce lawsuit must be filed, and a divorce order must be signed by a judge. This chapter addresses many questions you may have regarding your divorce.

7.1 What Is a Ground for Divorce?

The ground for divorce is the legal basis for the divorce. Virginia law provides for both no-fault and fault grounds of divorce.

7.2 Is Virginia a No-Fault State?

Yes, spouses may divorce in Virginia without having to prove that the other spouse is guilty of fault. Parties may be granted a divorce once they have lived separately, without cohabitation, for at least one year, provided that at least one of the parties has had the intent to end the marriage for at least one year. The one-year waiting period is shortened to six months if the parties have no minor children, and if they have a written agreement resolving all issues associated with the divorce.

7.3 What Are Fault Grounds for Divorce?

The primary fault grounds are adultery, desertion, and cruelty. Sodomy and buggery, though listed, are rarely used in practice. If your spouse is convicted of a felony and sent to prison for at least one year, that provides the basis for a fault-based divorce. There is no waiting period for a divorce based upon adultery; the other fault-based divorces have a one-year waiting period.

7.4 I Don’t Want to Sue My Spouse for Divorce. Is There Some Other Way to Get a Divorce?

No, the only way to get a divorce is to file a complaint for divorce with the appropriate circuit court clerk. Filing the complaint begins the lawsuit that will result in a judge signing a divorce order. The divorce is granted when the judge signs the divorce order.

7.5 Do I Have to Be Separated for a Period of Time Before I Can File for Divorce?

Yes. The standard waiting period in Virginia is one year. You may file for divorce based upon adultery with no waiting period, or you can file for a no-fault divorce after a six-month period of separation if you have no minor children, and if you have a written agreement resolving all issues associated with the divorce.

7.6 Do I Have to File Anything to Prove That I am Separated?

No, you are separated once you stop living together as a married couple, and at least one of you has the intent to end the marriage. You will need a witness (not your spouse) to testify or to sign an affidavit confirming your separation.

7.7 Do I Have to Move to Prove That I am Separated?

Not necessarily. An in-house separation may be sufficient. Either you or your spouse has to have the intent to end the marriage. In addition, you must be separated so you will no longer sleep together, have sex, attend social functions together, or present yourself as a married couple. Your attorney can give you more detailed instructions. You will need a witness (not your spouse) to confirm your separation.

7.8 Do My Spouse and I Both Have to Live in Virginia in Order to Be Divorced in Virginia?

No, but at least one of you has to have been a resident of Virginia for at least six months before the divorce complaint is filed.

7.9 I Lived in New York With My Spouse Before I Moved Here Alone. Can I Get Divorced in Virginia?

Yes, you can seek a divorce in Virginia once you have lived here as a resident for at least six months. But if you have children or property in New York, you should consider seeking a divorce there. If your spouse has remained in New York with your children, Virginia may not have jurisdiction over the property division, custody, visitation, or support.

7.10 Can I File for Divorce While I am in Bankruptcy?

Yes, but you should consult with a divorce attorney and a bankruptcy lawyer in advance to determine the timing of your bankruptcy and your divorce.

7.11 I Have Only Been Married a Year. Is an Annulment an Option for Me?

Probably not. Annulments are allowed only under certain specific circumstances including no marriage license, bigamy, incest, impotency, conviction of a felony prior to the marriage, pregnancy on the wife's part by another man, a child fathered by the husband born to another woman within ten months after the marriage, or if either party had been a prostitute. This is just a brief summary of the detailed provisions of the Virginia Code governing annulments that contain exceptions and qualifiers. Even if you have a basis for an annulment, a no-fault divorce would be easier and less expensive to obtain.

7.12 My Spouse Has Told Me That She Will Never Give Me a Divorce. Can I Get One in Virginia Anyway?

Yes, you will be able to obtain a divorce even if your spouse opposes the divorce.

7.13 How Long Do I Have to Have Lived in Virginia to Get a Divorce in the State?

Either you or your spouse has to have been a bona fide resident of and domiciled in Virginia for at least six months before the filing of the divorce complaint. This requirement is independent of the waiting period described in this chapter.

7.14 My Spouse and I Live In Different Counties in Virginia. Where Do I File for Divorce?

The preferred venue is either where you last lived together as husband and wife, or where the defendant lives. (The spouse filing suit is the plaintiff, and the other spouse is the defendant. )

7.15 I am Not a Citizen of the United States. Can I Still Get Divorced?

Yes, if the other requirements are met. There is no citizenship requirement associated with obtaining a divorce in Virginia.

7.16 Is There a Waiting Period for a Divorce in Virginia?

Yes, for all grounds for divorce except adultery. The standard waiting period is a one-year separation before a complaint for divorce can be filed. If you and your spouse have settled all issues with a written agreement, and if you have no minor children, then the waiting period is six months.

7.17 Is There a Way to Avoid Having the Sheriff Serve My Spouse With Divorce Papers?

Yes, it is common to cooperate in order to avoid having the sheriff serve the defendant with divorce papers. Instruct your divorce attorney regarding your preferences, and he or she will coordinate with the opposing attorney.