Grounds For Divorce in Virginia

Getting a divorce in Virginia is complicated. Indeed, not only is divorce in itself an emotional and frustrating thing to pursue, but the state of Virginia recognizes two distinct types of divorce and maintains “grounds” for divorce as well. This means that to get a divorce in the state, a divorce-seeking party must give grounds, or reasons, for why the divorce should occur. The following reviews the two types of divorce in Virginia, as well as different grounds on which divorce may be sought.

The Two Types of Divorce in Virginia

The state of Virginia legally recognizes two distinct forms of divorce. The first is a divorce from bed and board, often referred to by its Latin name, divorce a mensa et thoro. This form of divorce is not a final dissolution of the marriage but rather a partial one. 

When a court grants a divorce from bed and board, it legally separates the couple, allowing them to live apart and formalize a legal separation. However, a key and defining characteristic of this type of divorce is that the parties are not permitted to remarry. They remain legally married in a technical sense, and the divorce decree does not sever the “bond of matrimony.”

So, why would a couple seek a divorce from bed and board? This option is often pursued for a variety of reasons. In some cases, it may be the result of religious convictions that prohibit or frown upon a final divorce. 

For others, it serves as a way to formalize a legal separation, allowing them to address issues of spousal support, property division, and child custody without completely ending the marriage. It provides a structured period for both parties to live separately, with court-ordered arrangements in place, before making a final decision about the future of their marriage.

The second and more common type is a divorce from the bond of matrimony, or divorce a vinculo matrimonii. This is a complete and final divorce that legally dissolves the marriage in its entirety. When a court grants a divorce from the bond of matrimony, both parties are returned to the legal status of single individuals, and they are fully permitted to remarry. This is the goal for most couples seeking to end their marriage and move on with their lives.

A divorce from bed and board is not necessarily a dead end. As the law allows, a party who has initially secured a divorce from bed and board can later transition it into a divorce from the bond of matrimony. 

This is possible after a period of one year has passed since the original date of separation, provided that the couple has lived separately and apart during that time. This provision allows for a procedural path from a temporary legal separation to a permanent and complete dissolution of the marriage, offering flexibility to couples who may not be ready for a final divorce initially.

Grounds for Divorce in Virginia

The state of Virginia recognizes different grounds, or legal reasons, for divorce depending on the type being sought. These grounds are categorized as either “fault-based” or “no-fault,” each carrying different requirements and burdens of proof.

Grounds for a Divorce from Bed and Board

For a divorce from bed and board, the grounds are always based on fault, meaning one party must prove the other’s misconduct. These grounds include:

• Abandonment or Willful Desertion: This ground requires more than just a mutual agreement to separate. To prove abandonment, a spouse must demonstrate that their partner left the marital home without their consent, without justification, and with a clear “intent to desert.” The leaving spouse must have the intention of ending the marital relationship. A couple that agrees to separate and lives apart for a period of time is not considered to have abandoned or deserted one another. Furthermore, Virginia law also recognizes “constructive desertion,” which occurs when one spouse’s misconduct is so egregious that it forces the other spouse to leave the marital home, effectively making the leaving spouse the deserted party.
• Cruelty: This ground is satisfied when one spouse’s actions endanger the mental or physical health of the other. The conduct must be more than simple incompatibility, name-calling, or general bickering. It must be severe enough to create a reasonable apprehension of bodily harm or to make continued cohabitation unsafe. Examples of cruelty can include physical violence, credible threats of harm, or a pattern of abusive behavior that is demonstrably detrimental to the health of the divorce-seeking spouse. The law requires a high standard of proof for this ground, as the court must be convinced that the behavior is severe and ongoing.

Grounds for a Divorce from the Bond of Matrimony

A complete divorce from the bond of matrimony can be obtained through both no-fault and fault-based grounds.

• No-Fault Grounds and Separation: This is the most common path to a complete divorce in Virginia. It does not require a party to prove fault, but rather hinges on the duration of the couple’s separation. If a married couple has lived “separate and apart” continuously for a period of not less than one year, they can be granted a divorce from the bond of matrimony. For this ground to be met, the couple must cease all marital cohabitation, including sexual relations, and at least one party must have the intent to divorce. The separation period can be as little as six months if two specific conditions are met: the couple has no minor children together, and they have executed and signed a written Property Settlement Agreement that addresses all issues of property division and spousal support. This accelerated timeline is a key feature of Virginia’s no-fault divorce process.
• Adultery, Sodomy, or Buggery: These are fault-based grounds that can be used to obtain a complete divorce. Adultery is defined as sexual intercourse by a married person with someone other than their spouse. Proving adultery is a demanding process, as Virginia law requires “clear and convincing evidence.” This often involves presenting circumstantial evidence, such as proof of a romantic disposition and the opportunity to commit the act, rather than direct proof. The court may also consider defenses to an adultery claim, such as condonation (the forgiving of the act), connivance (encouraging or consenting to the act), or recrimination (the divorce-seeking spouse has also committed adultery).
• Felony Conviction: A spouse can seek a divorce from the bond of matrimony if their partner has been convicted of a felony and sentenced to confinement for a period of at least one year or more. A critical condition for this ground is that the divorce-seeking spouse cannot have resumed cohabitation with the convicted spouse after they learned of the incarceration. This ground provides a path to end a marriage when one spouse is facing a long-term prison sentence.

Additional Legal Considerations in Virginia Divorce

Beyond the grounds for divorce, there are several other vital aspects of Virginia family law that must be considered.

• Residency Requirement: To file for divorce in Virginia, at least one of the spouses must have been a bona fide resident and domiciliary of the Commonwealth for a minimum of six months immediately preceding the filing of the divorce complaint.
• Property Division: Virginia is an equitable distribution state, meaning that marital property is divided in a fair and equitable manner, though not necessarily equally. The court considers a variety of factors, including the monetary and non-monetary contributions of each spouse, the duration of the marriage, and the circumstances that led to the divorce. A divorce from bed and board often serves as a period for couples to negotiate and formalize a Property Settlement Agreement that details how they will divide their assets and debts.
• Spousal Support: The court may order one spouse to pay spousal support (alimony) to the other. The court will consider numerous factors, such as the standard of living during the marriage, the duration of the marriage, the age and health of each spouse, and the monetary and non-monetary contributions of each party to the family’s well-being. A fault-based divorce, such as one based on adultery, can significantly impact a court’s decision regarding spousal support.
• Role of Legal Counsel: Navigating the complexities of Virginia divorce law can be challenging. Whether a party is seeking a no-fault divorce with a simple separation agreement or a contentious fault-based divorce, the guidance of a qualified Virginia divorce lawyer is invaluable. An attorney can help determine the most appropriate type of divorce, gather the necessary evidence for fault grounds, negotiate a fair Property Settlement Agreement, and represent the client’s interests in court.

To sum it up, Virginia offers two distinct legal avenues for ending a marriage, each with its own purpose, requirements, and legal implications. The choice between a divorce from bed and board and a divorce from the bond of matrimony is a critical one that depends on the couple’s specific situation and ultimate goals. The grounds for divorce, whether fault-based or no-fault, are the foundation of the legal process, and a clear understanding of these laws is essential for anyone embarking on this journey.

Work with an Experienced Divorce Lawyer in Virginia Today

Most couples who are seeking a divorce in Virginia choose to pursue the divorce on no-fault grounds, although there are times where a divorce may be necessary, such as if cruelty is occurring, and the one-year or six-month separation period has not been satisfied. At the law offices of Olmstead & Olmstead, P.C., our experienced Virginia divorce attorneys can help you to determine what grounds make sense for your divorce, and assist you in putting the process in motion. For a consultation with our legal team, please call us at 703-361-1555, visit our office in person, or contact us online using the intake form on our website.