Divorce in Virginia, Part 2

Judge not bound by parties’ no-fault agreement

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Legal separation, under another name

As discussed in from “Divorce in Virginia, Part 1,” Virginia provides for two kinds of divorce:

  1. divorce from bed and board (a mensa et thoro) and
  2. divorce from the bond of matrimony (a vinculo matrimonii).

But, really, the first is merely Virginia’s legal jargon for legal separation; i.e., the parties live separately and their legal and business affairs are separated, but they are not free to remarry.

Judge can find fault, even when parties agree to no-fault

More odd is that, even though “no-fault” divorce is available, the court may nevertheless rule that fault-driven grounds are more appropriate; from the Virginia State Bar:

Divorce from the Bond of Matrimony

a. Separation divorce—the “No Fault” divorce

While grounds for divorce traditionally implied misconduct by one or the other spouse, modern divorce laws do not require “fault” grounds for a divorce to be granted. A “no fault” divorce from the bond of matrimony may be awarded upon a showing that for more than one year the husband and wife both intended to and have continuously lived separate and apart without any cohabitation. If the husband and wife have entered into a Property Settlement or Separation Agreement and there are no minor children, the time period is reduced from one year to six months.

Although separation provides a “faultless” ground for divorce, fault may still be an issue when spousal support (alimony) is being sought. Further, a judge is free to award a divorce on fault grounds even though “no fault” separation grounds exist.

Grounds for divorce

Besides the no-fault, separation provision, Virginia law provides three fault-based grounds for divorce:

  1. For adultery; or for sodomy or buggery committed outside the marriage;
  2. Where either of the parties subsequent to the marriage has been convicted of a felony, sentenced to confinement for more than one year and confined for such felony subsequent to such conviction, and cohabitation has not been  resumed after knowledge of such confinement (in which case no pardon granted to the party so sentenced shall restore such party to his or her conjugal rights);
  3. Where either party has been guilty of cruelty, caused reasonable apprehension of bodily hurt, or willfully deserted or abandoned the other,such divorce may be decreed to the innocent party after a period of one year from the date of such act.

Residency requirements

The divorce may be filed for in:

(1) the county or city in which the spouses last lived together;or

(2) at the option of the plaintiff:

(a) the county or city where the defendant resides, if the defendant is a resident of Virginia; or

(b) if the defendant is a non-resident of Virginia, the county or city where the plaintiff resides.

[source : Code of Virginia; Title 8, Section 8.01-261; and Title 20, Sections 20-96 and 20-97].

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