Divorce:

<body topmargin=0 leftmargin=0 marginheight=0 marginwidth=0> <table cellpadding=0 cellspacing=0 border=0><tr> <td valign="top" colspan=2 height=90 BGCOLOR="#336666" TEXT="#080000" background="069b85a3.jpg"> <div> <FONT SIZE="5" COLOR="#000000" FACE="Arial" ><B>Perry Law Group, PC (formerly Perry & Bray, PC) </B></FONT><B>     |     </B><A HREF="index.htm" TARGET="_top" TITLE="Perry Law Group, PC (formerly Perry Bra"><B>home</B></A></div> <div>                                                   </div> <div> <B>3660 Boulevard, Suite K Colonial Heights, VA 23834 (804) 520-7060 (800) 866-3075, toll free in VA</B></div> </td> </tr><tr> <td valign="top" width=210 BGCOLOR="#336666" TEXT="#080000" background="06ad2b83.jpg"> <bR> <div> <A HREF="index.htm" TARGET="_top" TITLE="Perry Law Group, PC (formerly Perry Bra">Home</A></div> <div> <A HREF="id18.htm" TARGET="_top" TITLE="Contact Us">Contact us</A></div> <div> <A HREF="id17.htm" TARGET="_top" TITLE="About Us">About us</A></div> <div> <A HREF="id24.htm" TARGET="_top" TITLE="Who Won? 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This type of divorce <B>did not dissolve the marriage or allow for remarriage thereafter. Only death dissolved the bond of marriage.</B></div> <bR> <div> In England, after the reign of Henry VIII, an absolute divorce dissolving the bond of matrimony and allowing remarriage could only be obtained by a special act of Parliament.</div> <bR> <div> In Virginia, it was necessary to <B>petition the legislature</B> for divorce. In fact, not until <B>1841 </B>were absolute divorces allowing remarriage obtainable through a <B>judicial proceeding </B>in Virginia. At that time it was necessary to prove adultery in order to divorce. Thereafter, over time, additional causes of action were allowed, including imprisonment for a felony, cruelty and desertion after a one year period, sodomy and buggery, as well as adultery.</div> <bR> <div> In <B>1960, </B>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 the law that certain marriages had ceased to exist after a lengthy separation. The separation period has been gradually reduced so that  some individuals may apply for a divorce after only six months' separation. </div> <bR> <div> Because there is no historic basis for a common-law divorce, it is a <B>creature of statute</B>. This means that the statutory requirements must be followed <B>in every detail.</B></div> <bR> <div> Emotional tensions and stress associated with separation and divorce make it difficult for individuals to make sound decisions. If you're facing these decisions, you need an experienced attorney to counsel you.</div> <bR> <div> Grounds For Divorce</div> <bR> <div> There are two types of divorce in Virginia. A <B>bed and board decree </B>is a partial or qualified divorce under which the bond of marriage is <B>not entirely dissolved. </B>Under this type of divorce, a husband and wife are legally separated from each other, but are not permitted to commit adultery with another person or marry again. A complete <B>divorce from the bond of matrimony </B>dissolves the marriage totally and reestablishes individual “singlehood” such that a party may marry again. </div> <bR> <div> Even if both husband and wife agree on a divorce, <B>legally sufficient grounds or prescribed reasons must exist and be proven to the satisfaction of the court. </B>This is typically done through a deposition at the attorney's office. <B>A witness is necessary</B>, too, because <B>uncorroborated evidence </B>of one party (or even both parties) to the divorce is deemed insufficient to grant the divorce.</div> <bR> <div> The grounds of divorce from bed and board are <B>willful desertion or abandonment, or cruelty and reasonable apprehension of bodily harm. </B>Desertion is a unilateral cessation of cohabitation with the intent (in the mind of the offender) to remain apart permanently. Separation by mutual consent is not desertion. If a spouse is forced to leave by the cruelty of the other spouse, he or she may be awarded a divorce upon the ground of cruelty.</div> <bR> <div> Acts that tend to cause bodily harm and render cohabitation 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. Divorces granted on these grounds are only partial divorces from bed and board, and such divorces do not entitle the parties to have sexual relations with others or permit them to remarry.</div> <bR> <div> The <B>grounds for an absolute divorce</B> completely dissolving the bond of matrimony are found in Virginia Code Section 20-91. The grounds include:</div> <bR> <div> <IMG BORDER="0" SRC="Symb075c00b700f000000000.png" HEIGHT="16" WIDTH="24" ALIGN="bottom" HSPACE="0" VSPACE="0">adultery</div> <bR> <div> <IMG BORDER="0" SRC="Symb075c00b700f000000000.png" HEIGHT="16" WIDTH="24" ALIGN="bottom" HSPACE="0" VSPACE="0">sodomy and buggery outside the marriage</div> <bR> <div> <IMG BORDER="0" SRC="Symb075c00b700f000000000.png" HEIGHT="16" WIDTH="24" ALIGN="bottom" HSPACE="0" VSPACE="0">desertion or cruelty <I>after a one-year waiting period</I></div> <bR> <div> <IMG BORDER="0" SRC="Symb075c00b700f000000000.png" HEIGHT="16" WIDTH="24" ALIGN="bottom" HSPACE="0" VSPACE="0">sentence of imprisonment for a felony for more than one year</div> <bR> <div> <IMG BORDER="0" SRC="Symb075c00b700f000000000.png" HEIGHT="16" WIDTH="24" ALIGN="bottom" HSPACE="0" VSPACE="0">separation for over one year</div> <bR> <div> <IMG BORDER="0" SRC="Symb075c00b700f000000000.png" HEIGHT="16" WIDTH="24" ALIGN="bottom" HSPACE="0" VSPACE="0">separation for over six months <I>where there are no minor children of the marriage and the parties have a written property settlement.</I></div> <bR> <div> Adultery</div> <bR> <div>      <B>Adultery occurs when “any person, being married, voluntarily has sexual intercourse with any person not his or her spouse. “ VC 18.2-365.</B></div> <bR> <div>      The proof need not be “eyewitness” testimony and may be circumstantial. Proof of adultery must be <B>“clear and convincing.”  </B>This is the <B>highest standard of proof in the civil law.</B> The court has said the proof must be “strict, satisfactory and conclusive.”</div> <bR> <div>      Suspicious circumstances are not enough. Even though  most cases must be built from circumstantial evidence, the circumstances must be such as to “lead the guarded discretion of a reasonable and just man to a conclusion of guilt.”</div> <bR> <div>      Sexual acts other than intercourse, such as oral or anal sex, may also form the grounds for divorce, if committed outside of the marriage. The standard of proof is the same for adultery.</div> <bR> <div>      Defenses to a claim of adultery include <B>condonation or forgiveness of the act by cohabitation after knowledge of the act, </B>and <B>procurement or connivance</B> by encouraging or making it possible, or by entrapping the spouse. Where this is shown, no divorce will be granted on this ground. The petitioning spouse  must be innocent of such wrongdoing. Impotency is another defense to this ground. There is also a <B>five year statute of limitations, </B>such that the act must have occurred within five years of the petition of divorce.</div> <bR> <div> Conviction of a Felony</div> <bR> <div>      If a spouse is convicted of a felony and sentenced to the penitentiary for more than one year, and is in fact so confined, the other spouse has grounds for divorce, provided he or she does not resume cohabitation with the guilty spouse after knowledge of the conviction and confinement.</div> <bR> <div> Desertion for more than one year.</div> <bR> <div>      If a party is deserted or abused or suffers acts of cruelty by his/her spouse, as a result of which they are separated, then after one continuous year of separation, without reconciliation and without cohabitation, the innocent spouse may secure a divorce from the bond of matrimony whether or not he/she has sought a divorce from bed and board. If a bed and board decree is obtained, after a year of separation, either party may petition to merge the bed and board decree into a full divorce decree from the bond of matrimony.</div> <bR> <div> No fault divorce</div> <bR> <div>      The court is not required to ignore fault grounds for divorce, if they are pleaded and proven, and  grant instead a divorce  on the grounds of separation for the statutory period.</div> <bR> <div>      VC 20-121.02 allows either party a divorce on the grounds of separation for the statutory period, without filing amended pleadings, where a party has already filed for divorce on fault grounds. In cases where there are no minor children born to either party, and the parties have a written property settlement agreement, the separation period is six months. In all other cases the statutory separation period would be one year.</div> <bR> <div>      There must be an <B>intent to remain apart permanently formed simultaneously with the beginning of the period of separation, and this intention must be communicated to the other spouse.</B> Virginia does not promote divorce by ambush, where an extended separation required for reasons other than an intent to remain apart permanently might later ripen into grounds for an “instant divorce.” For example, a separation that would not give rise to divorce grounds (unless the intent to permanently depart from the marriage existed at that time, and that intent was communicated to the other spouse) would be moving from the spouse through military service.</div> <bR> <div>      The separation period is intended to give the parties time to contemplate and reconsider their actions before dissolution of the marriage. In reality, it has often become an “easy out” for a disgruntled spouse who has no legitimate reason for divorce.</div> <bR> <div>      While some judges have granted divorces based upon separation while the parties are said to reside separately and apart under the same roof, other judges will require a complete physical separation with a separate residence. There is one appellate case which upholds separation under the same roof as a basis for divorce, provided it can be established and corroborated that the parties are truly living separately and apart.</div> <bR> <div> Relief</div> <bR> <div> <FONT SIZE="4" COLOR="#000000" FACE="Arial" >     </FONT>In filing for divorce one may request <B>additional relief </B>to include determinations of custody, child support, visitation rights, (equitable) property division, division of marital debt, lump sum spousal support, rehabilitative spousal support, restitutionary spousal support, and ratification of the parties' separation agreement, if any. Relief may also include judgment for money owing or for damages for civil wrongs.</div> <bR> <div> Custody</div> <bR> <div>      This can be the most important issue in the divorce. These days, there is no presumption in favor of either parent. The standard applied by the court for custody determination is “the best interest of the child.” Custody will not be awarded to “punish” a “guilty” parent. On the other hand, the court will determine which parent is best suited to caring for the child, based upon financial, psychological, medical and other factors, so as to best meet the particular needs of the child or children.</div> <bR> <div>      Factors considered by the court in determining custody include: the age of the parents, the age of the children, the physical condition and mental condition of the parents and children, the fitness of a parent, the relationship existing between each parent and each child, the needs of the children, the role played by each parent in the upbringing and care for the child, the home where the child will live and the child's wishes, if the child is of sufficient age, intelligence and maturity to make such a decision. Once a court has made a determination of custody, the court will consider a change in custody only after a showing of a material change in circumstances. In every custody case, the test for the court to use is “the best interests of the child.”</div> <bR> <div> Child support obligations</div> <bR> <div>      The noncustodial parent will be ordered to pay support in accordance with the combined income of the parties and the state statutory guidelines. The guideline amount is presumed to be the appropriate amount, but the court may depart from the guideline amount for just cause in  appropriate cases. Support is subject to change and may be increased or decreased upon showing a material change in circumstances of either or both parents or of the child. If the child spends more than 110 days per year “visiting” the noncustodial parent, the child support is calculated using a different formula and results in a  lower amount.</div> <bR> <div> Property settlement agreements</div> <bR> <div>      Spouses may agree between themselves to resolve issues, rights, duties and obligations arising out of the marriage and separation. These agreements may include such matters as division of their property, division of their debt, determination of spousal support, attorney's fees, custody of their children and child support. Provision may be made for anticipated future need, such as a child's college expenses. 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.</div> <bR> <div> Who needs a lawyer?</div> <bR> <div>      The complexities of family law, coupled with the emotional trauma and tensions associated with separation and divorce make it difficult for anyone 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 a separation or possible dissolution of your marriage, one of your counselors should be an experienced and trusted lawyer.</div> <bR> <div> <I><B>These pages provide general information only, and are not intended to offer specific legal advice for your situation. Visiting this site does not establish an attorney-client relationship.</B></I><I> </I><I><B>Please note that we are licensed attorneys only in Virginia, and we do not purport to do business or offer advice outside of Virginia.  </B></I></div> <bR> <div>       </div> <bR> <div>      </div> <bR> <bR> <bR> <bR> <bR> <bR> </td> </tr></table></body>