FAQs on Divorce
***The articles on this site are not intended to give legal advice and do not purport to do so. Our intention is to provide general information pertaining to legal topics. If you are considering separation or believe that your spouse is considering it, you should seek a confidential consultation with a good experienced divorce lawyer.***
What is "no fault" divorce?
In 1960, Virginia introduced its first experiment with "no fault" divorce, requiring separation for a three year period. The original intent of the statute was to recognize in law those marriages which had ceased to exist in fact. Thereafter the separation period has been gradually reduced to as low as six months for couples with no minor children who have settled their property and other issues in writing. Nowadays, no fault refers to the fact that the divorce is obtained on the basis of having lived apart for the statutory period without pointing out which party is "responsible" for the break up.
Do I need a lawyer?
The complexities of family law, coupled with he emotional trauma and tensions associated with separation and divorce make it difficult for you to make objective decisions at a time when life-changing decisions are required. An experienced, seasoned attorney with a background in counseling and negotiation and a specialized knowledge of family law can assist you in navigating the stormy waters of separation and divorce. It has been said: "In the multitude of counselors is wisdom" and "Every purpose is established by counsel; by wise counsel wage war." When faced with separation or possibly dissolution of your marriage and family, one of your counselors should be an experienced family law attorney.
Attorney Virginia Dante Perry has been advising and guiding individuals in matters of separation and divorce for 30 years. She has written two special reports that you need to read, if you are reading these FAQs, Why You Need a Good Divorce Lawyer and How to Choose a Good Divorce Lawyer. These special reports are available to you free, just for visiting our website. Go to the Lnks page and click on the title of interest for a downloadable version of the reports. The downloads are free for your personal use. If you are facing separation and divorce, you can't afford not to read these informative reports.
If my spouse and I agree on divorce, can we do it ourselves?
If you know what to do and how to do it, you might be able do it yourself. However, Virginia divorce law is not user friendly to non-attorneys. Furthermore, Attorney Perry has stepped in to help many people who have tried to use the on-line "do-it-yourself" divorce systems only to find they don't know enough to get it done; they don't know how to use the documents that they have bought. In short, they still need legal help. If you have been separated for a year or more and both of you agree to the divorce, you could qualify for our $350 anniversary divorce special. If you qualify the divorce is fast, easy and affordable. And we take care of everything for you. If you don't qualify for our special, you should probably have a lawyer any way. After all, how much are your kids worth? What is it worth to get your fair share of assets? How can you know what share is a fair share?
Is there a residence requirement for divorce in Virginia?
Yes. You or your spouse must have been a bona fide resident and domiciliary of Virginia for at least six months before filing for divorce in Virginia.
What is a "bed and board" divorce?
There are two types of divorce in Virginia. A bed and board decree is a partial or qualified divorce under which the bond of marriage is not entirely dissolved. Under this type of divorce, the court decrees that the husband and wife are to live perpetually separate in their persons and property.
They are divorced for most purposes, but the bond is not completely severed. Neither party is free to marry another person or to engage in sexual relations with another person. such a marriage would be bigamous and such relations would constitute adultery. On the other hand, in the event the couple should reconcile and resume cohabitation, they may petition the court to dismiss the divorce and resume cohabitation without a second wedding ceremony.
What if I want to be free to marry again?
You need a divorce from the bond of matrimony, which fully dissolves the bond of marriage and re-establishes the individual as single such that he/she may marry again.
If my spouse and I agree to divorce, do we still need grounds?
Yes, even if both husband and wife agree on a divorce, grounds or legally prescribed reasons must exist and be proven to the satisfaction of the court.
What about "irreconcilable differences" as a ground?
Virginia does not recognize "irreconcilable differences" as a ground for divorce. That does not mean that you cannot end your marriage if you find you and your spouse are incompatible. It does mean that you will have to separate and live apart for the statutory period before filing for divorce.
What are the grounds for a divorce from bed and board?
The grounds are willful desertion or abandonment or cruelty and reasonable apprehension of bodily harm. Desertion is a unilateral cessation of cohabitation with an intent to remain apart permanently in the mind of f the offender. Separation by mutual consent is not desertion. On the other hand, if a spouse is forced to leave by the cruel acts of the other, he or she is not guilty of desertion and may be awarded a divorce upon the ground of cruelty.
What constitutes cruelty?
Acts that tend to cause bodily harm and render cohabitation (living together) unsafe constitute the ground of cruelty. If the conduct of a spouse is so outrageous as to harm or endanger the mental or physical health of the other spouse, this can amount to cruelty sufficient to establish grounds for divorce.
The Virginia Supreme Court has said "…cruelty that authorizes a divorce is anything that tends to bodily harm and thus renders cohabitation unsafe; or, as expressed in the older decisions, that involves danger of life, limb or health…. [there]...may be cases in which the husband, without violence, actual or threatened, may render the marriage state impossible to be endured…angry words, coarse and abusive language, humiliating insults and annoyances in all the forms that malice can suggest, which may as effectually endanger life or health as personal violence and which, therefore, would afford grounds for relief… what merely wounds the feelings without being accompanied by bodily injury or actual menace—mere austerity of temper, petulance of manner, rudeness of language, want of civil attention and accommodation, or even occasional sallies of passion that do not threaten harm, although they be high offenses against morality in the married state, does not amount to legal cruelty." (Upchurch v. Upchurch, 194 Va. 990 (1953) )
If you believe that you may have grounds for divorce based upon cruelty, if you believe that you or your children are in danger from your spouse, you need to seek competent legal advice. To schedule an appointment for a confidential consultation, call (804) 520-7060 or click here to use the contact button and someone will contact you.
What are the grounds that will make me single again?
The grounds for an absolute divorce dissolving the bond of matrimony are:
2. desertion or cruelty after a one year separation
3. sentence of imprisonment for a felony for more than one year
4. separating with the intent to remain apart permanently and living apart for one year
5. where there are no minor children and the parties have a written property settlement, separating and living apart for six months
6. after obtaining a bed and board divorce, upon expiration of the applicable statutory period (either one year or six months)
What is adultery and how do you prove it?
Adultery occurs when "any person, being married, voluntarily has sexual intercourse with any person not his or her spouse." The proof need not be "eyewitness" testimony and may be circumstantial. However, proof of adultery must be "clear and convincing." This is the highest standard of proof in the civil law. The court has said the proof must be "strict, satisfactory and conclusive." Suspicious circumstances are not enough. The circumstances which establish adultery must be such as to "lead the guarded discretion of a reasonable and just man to a conclusion of guilt."
Sexual acts other than intercourse, such as oral or anal sex may also form the ground of divorce, if committed outside of marriage. The standard of proof is the same as for adultery.
Is there a statute of limitations on adultery?
Yes. The act of adultery complained of must have occurred within FIVE YEARS.
Are there defenses to a charge of adultery?
Yes. Attorney Perry has successfully defended clients accused of adultery, by raising a number of legal defenses. Defenses to a charge of adultery include condonation or forgiveness of the act by cohabitation after knowledge of the act, procurement or connivance by encouraging or making it possible or entrapping the spouse. Where this is shown, no divorce will be granted on this ground. The petitioning spouse must be innocent of wrongdoing. Impotency is another defense to this ground. Finally, as stated above, there is a five year statute of limitations such that the act must have occurred within five years of the petition for divorce.
Ordinarily, proof of fault grounds requires only a "preponderance of the evidence." This means sufficient proof to "tip the scale" in your favor. Proof of adultery is different. It requires a higher standard of proof. In fact the proof required of adultery is the highest standard in the civil law and is known as "clear and convincing" evidence. Sometimes it is possible to defend charges upon the basis that the proof tendered is insufficient as a matter of law.
Can we get a divorce after six months' separation if we have kids?
No. You must be separated for a year or more, if there are any minor children born or adopted of the marriage.
Do I have to have a property settlement?
In order to get a no fault divorce upon the ground of six months' separation, you must have a signed, written property settlement. It can be a simple written statement that each of you retains the property in your respective possession and/or that there is no property acquired during the marriage. It should be signed and dated by both parties. If you do not have a signed dated written property settlement agreement, you will have to be separated for a full year before filing for no fault divorce. (This does not mean that you cannot file for divorce on fault grounds, if you can prove fault.)
If you have been separated for more than one year, it is not necessary to have a written property settlement. However, having settled issues like property, support and custody can make the divorce faster and easier to obtain, provided no one is in violation of the terms of the settlement.
Is a property settlement agreement a good idea?
It can be a way of taking control and arriving at a resolution that works uniquely well for your family. By law, spouses may agree between themselves upon resolution of issues, rights, duties and obligations arising out of the marriage and separation. Agreements may include such matters as division of property, division of debt, spousal support, payment of attorney's fees for separation and divorce. Provision may also be made for anticipated future need, such as children's college expenses, provision of life insurance. There can be a provision for mandatory mediation of disputes before going to court. Provisions dealing with spousal support are binding upon the parties and may not be altered by the court, absent legal basis to rescind or modify the contract. The contract may provide for modification of spousal support, but if it does not provide for modification of spousal support, then support may not be modified absent a legal basis to rescind the contract.
The possibilities for contract terms are more varied and flexible than the remedies available from the court. You can do by agreement things that the court in dividing marital property and adjudicating your rights may not be able to do.
What other relief can I get in a divorce?
In filing for divorce, you may also request a determination of custody, child support, visitation rights, equitable property division, equitable division of marital debt, temporary spousal support, lump sum spousal support, permanent spousal support, rehabilitative spousal support and or ratification of your separation agreement, if any. Relief may also include judgment for money owing or judgment for damages for civil wrongs or a request for enforcement of a contractual provision in the property settlement.
What if I don't know where my spouse is?
If you don't know where your spouse is or if he/she resides outside of Virginia, you can still get a divorce. You will need to sign an affidavit that you don't know where he/she is, that you have tried to locate him/her without success and you must provide the last known address you have for him/her. If your spouse is a non-resident of Virginia, you may sign an affidavit to that effect. Based upon the affidavit, the court can issue an order of publication in the newspaper notifying your spouse of the divorce action pending in Virginia and a copy of the order will be mailed to the last known address.
Publication in the newspaper can be expensive. Under some circumstances actual publication in the newspaper may be omitted by the court. You should discuss this with your lawyer.
If you don't know where your spouse is, you should talk to an experienced family law attorney about your situation and get the information and advice you need to make an informed decision.
If after reading over the foregoing questions and answers on divorce, you would like specific advice for your unique situation, CALL (804) 520-7060 FOR A CONFIDENTIAL APPOINTMENT. Or to contact us for further information, please click here.
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