DIVORCE IN VIRGINIA

Frequently asked questions

• I want a divorce where do I start?
• What are the grounds for a divorce in Virginia?
• What is required to prove “cruelty”?
• What is required to prove “adultery”?
• What is required to obtain a “no-fault” divorce?
• Does one spouse have to physically move out of the marital home in order to have a “separation”?
• Is there any advantage to pursuing a fault-based divorce if sufficient evidence exists to prove it?
• If I choose to pursue a “no-fault” divorce, can I still present evidence of my spouse’s bad conduct?

Q. What are the grounds for a divorce in Virginia?

A. Virginia will grant a divorce based upon any one of three “fault” grounds; namely, (1) desertion, (2) cruelty; and, (3) adultery. In addition, Virginia also recognizes the “no-fault” grounds of living separated for the required period of time (usually one year).

Q. What is required to prove “cruelty”?

A. Virginia recognizes any physical cruelty as a ground for divorce. Verbal abuse, emotional abuse, general rudeness and utter lack of civility by one spouse will not be viewed as sufficiently bad conduct so as to rise to the level of “cruelty.”

Q. What is required to prove “adultery”?

A. In order to obtain a divorce on the grounds of adultery, you must be able to prove that, within the past five years, your spouse has had sexual relations with another adult. This is often quite difficult to do, as telephone records, hotel receipts and email exchanges are considered by most judges as being “highly suspicious” but not sufficient to prove the required sexual relations. Most often, surveillance of the suspected spouse by a private investigator is required.

Q. What is required to obtain a “no-fault” divorce?

A. Living separate and apart from each other, without marital cohabitation, for a period of twelve consecutive months, will establish grounds for a “no-fault” divorce. If you have no minor children, and have executed a written agreement that involves all issues of spousal support and property division, then the required period of separation without marital cohabitation is cut in half, to six months.

Q. Does one spouse have to physically move out of the marital home in order to have a “separation”?

A. No, Virginia law will recognize a separation between spouses who remain living under the same roof. The problem, however, is proving that there was no “marital cohabitation” for the required period of time. In order to obtain a divorce on “no-fault” grounds, while remaining living together, will require that you present testimony from some third person establishing the fact that you and your spouse have truly led separate lives, doing nothing together as a married couple. This is often quite difficult to do, as people ending their marriage tend to keep such information confidential.

Q. Is there any advantage to pursuing a fault-based divorce if sufficient evidence exists to prove it?

A. Matrimonial attorneys are divided on this issue. Many believe that the concept of “fault” in a marriage is antiquated and of no true significance in today’s divorce litigation. Other, more enlightened, matrimonial attorneys (such as The Duff Law Firm), firmly believe that judges are affected by evidence that one spouse has been physically cruel to the other spouse, or has committed adultery. The consequences of such offensive conduct will most often be reflected in that judge’s rulings on spousal support and/or eventual assessment of attorney’s fees.

Q. If I choose to pursue a “no-fault” divorce, can I still present evidence of my spouse’s bad conduct?

A. Yes, since your spouse’s bad conduct and offensive actions during the marriage could be highly significant on the issue of property division (equitable distribution). Since a judge is required to divide marital assets “fairly,” what is considered to be “fair” can be greatly influenced by one spouse’s conduct which eventually led to the destruction of the marriage.