Virginia Grounds for Divorce
Fault Based Divorce
Virginia is among just a few states that still provides for “fault” based divorces. A divorce based on “fault” requires bad conduct; one spouse must allege in a complaint that the other was at “fault” for the divorce. There must be misconduct that led to the breakdown of the marriage. The fault grounds in Virginia include:
- a felony conviction and confinement following the conviction, and
- cruelty, willful desertion or abandonment.
No Fault Divorce
A “no-fault” divorce is common based on irreconcilable differences”, which is just another way of saying that you don’t, or can’t get along. No further explanation is required for a no-fault divorce. In Virginia “irreconcilable differences” is not a grounds for a no-fault divorce it is just used as the reason for the divorce.
In Virginia if you don’t have a “fault” based divorce you must live separate and apart for a designated period time before you can file for divorce. If you meet one of the above “fault” grounds you can file for divorce immediately. The statutory waiting period for a “no-fault” divorce is as follows;
- One year if you have minor children
- Six months if you have no minor children and have a signed separation agreemenent
Separation can provide a “no-fault” ground for divorce, but fault can still be used when requesting spousal support (alimony). Fault is a factor the court looks at when determining division of property and awarding spousal support. Additionally, a judge can grant a divorce on fault grounds even though “no fault” separation grounds exist, and a judge can grant a “no fault divorce” even if fault grounds exist.
Proving adultery is fact-specific and must be proven by clear and convincing evidence. The evidence must be conclusive that the other spouse engaged in sexual relations with another person. It is typically not sufficient to prove another person stayed the night, there must be more. Suspicion or speculation is not enough.
What is a Property Settlement Agreement?
A Property Settlement Agreement is a contract that sets forth the rights, duties, and obligations of the parties. It typically includes things such as a division of property, spousal support, attorney’s fees, custody and visitation of children, and child support. Divorce is difficult enough, reaching an amicable agreements will great help make a difficult situation better.
The agreement will be filed with the court at the time of divorce and the court will enforce the agreement once it is signed. It is possible that an oral agreements dividing marital property may be enforceable, but the the terms of an oral agreement are very difficult to prove and will be enforced only if they meet certain strict requirements.
How Long Will it Take to get Divorced?
It depends. If you and your spouse are fighting over assets, custody and spousal support it could easily take over a year to make it through court. That is in addition to the statutory waiting period you must wait prior to filing for divorce. A contested divorce could take two years (or more) from the time you separated. If you agree on how to divide assets and how to arrange custody and spousal support and sign a Property Settlement Agreement, after the statutory waiting period is up, filing the proper paperwork in court could take as little as a few weeks.
If you have more questions about divorce please call me at 434-332-5155.