FAQ'sMcCormick - The Divorce Settlement Law Experts
What are the six (6) grounds for divorce in Virginia?
A final or absolute divorce may be based on any of the following grounds:
- Separate and apart for one year: This is the most common ground for divorce. It is often referred to as a “no fault” divorce. It means that the husband and wife have been continuously living apart, without cohabitation for at least one year.
- Separate and apart for six months: This ground can only be used if there are no minor (under 18) children born or adopted into the marriage and the parties have entered into a written property settlement agreement.
- Adultery: The adultery must have occurred within the past five years. You must not have continued to live with your spouse after for were informed of the adultery. Adultery is typically difficult to prove in court.
- Conviction of a Felony: The conviction must have resulted in confinement in a state or federal penitentiary for more than one year.
- Desertion plus one year separation: One spouse left the home without good reason and did not intend to return, and the husband and wife have been separated for at least one year. Leaving the marriage because of abuse does not constitute desertion.
- Cruelty plus one year separation: One party abused the other physically, emotionally, or mentally and the husband and wife have not lived together for at least one year.
What is a legal separation?
In Virginia, to be considered “separated” for purposes of obtaining a divorce, the parties simply must not be living together as husband and wife.
There is a qualified divorce referred to as a Divorce from Bed and Board (Divorce a mensa et Thoro) that is rarely used. A Divorce from Bed and Board means that the husband and wife are officially separated and neither can marry another person. It also means that should either spouse decide to cohabit with another person during the period of separation, that spouse can be charged with adultery.
There are two grounds of a Divorce from Bed and Board:
- Desertion or abandonment; or
- Cruelty and reasonable expectation of bodily harm.
It is not necessary to obtain a Divorce from Bed and Board in order to obtain a final or absolute divorce. However, if there is a Bed and Board decree, either party may ask the Court to have that decree converted into an absolute divorce one year after the separation occurred. Even if your spouse deserts you, you must wait one year before the Court can grant you a final divorce.
How long do we have to be separated before we can file for divorce?
In Virginia, a final no-fault divorce may not be granted until the parties have been separated at least one year if there are children born of the marriage. In the event that the parties have entered into a written Separation Agreement/Property Settlement Agreement and there are no children born of the marriage, the parties may proceed with the divorce action after a six-month separation. A fault-based divorce, such as one on the grounds of abandonment, abuse, or adultery, does not require a waiting period to file.
What is an annulment?
Unlike a divorce, which dissolves a valid marriage, an annulment is a legal decree that the marriage is void. Annulments are granted only in limited circumstances such as a marriage entered into as the result of fraud, duress, or coercion. An annulment cannot be granted merely because the marriage is of short duration and annulments are normally not granted for religious reasons.
What are the differences and similarities between an annulment and a divorce?
As in a divorce, the parties are free to marry after the annulment has been granted. The circuit court also has jurisdiction to determine child custody and support incident to an annulment action. The primary difference between an annulment and a divorce is that in an annulment action, spousal support and property distribution are unavailable to the parties.
Does my spouse have to agree to the divorce?
No. You may obtain a divorce regardless of how your spouse feels about it, as long as you, and at least one witness, can testify to the facts, such as the one-year separation, necessary to establish grounds for divorce.
Can I obtain a divorce if I do not know where my spouse lives or if he or she lives outside the State of Virginia?
Yes. However, in this situation, a notice of your divorce must be published in a local newspaper for a period of 4 weeks.
What is the cost of this publication?
Most local newspapers charge a fee of $75.00 for the publication.
How long must I have lived in Virginia prior to filing for divorce?
One of the parties to the divorce action must have been and still be a resident and domiciliary of the State of Virginia for at least 6 months prior to filing for divorce.
What does residency mean?
At the time the divorce suit is filed, at least one of the parties must be an “actual bona fide resident.” This means that, throughout the six months immediately preceding the filing of the divorce suit, the person must have had an actual, bona fide permanent home in Virginia. It is not necessary for the person to have been physically present in Virginia during every day of that time period.
What does domicile mean?
In additional to being an actual bona fide resident the party must also be a domiciliary. The domicile requirement is different from the residence requirement. Domicile means that the person intends to live in a place permanently, or at least indefinitely. A person can have only one domicile at any particular moment in time.
What if one or both parties are members of the armed forces of the United States? Can they still meet the residence and domicile requirements?
The Virginia statue provides that if a member of the armed forces of the United States has been stationed or has resided in Virginia for a period of six months or more immediately preceding the commencement of the divorce suit, then that person is presumed to be domiciled in and to have been a bona fide resident of Virginia.
What are the three (3) major steps in a typical divorce?
- To begin the divorce proceedings, a Bill of Complaint for Divorce is filed with the court and served to your spouse. Your spouse will have 21 days to answer this Bill of Complaint once it has been served. Your spouse can also accept service of the complaint and sign a waiver. By signing the waiver, your spouse agrees to waive the required waiting periods, thereby speeding up the divorce process.
- Depending on the type of divorce, a Pendente Lite hearing may be scheduled at this time. Other times, parties are ready to be heard. In that case, the Judge or a Commissioner will then hold the divorce hearing.
- Following the hearing and a decision in the case, the Judge will enter a Final Decree of Divorce. Each divorce is different. Therefore, some divorces may require additional steps or courses of action
Does my spouse have to be served with the Bill of Complaint?
No. Your spouse may choose to sign a Waiver once the Bill of Complaint has been filed with the court. By signing the waiver, your spouse is waiving his right to be served.
What is a Pendente Lite hearing?
At a Pendente Lite hearing, an award of temporary child custody and support, temporary spousal support, temporary use and possession of the home, injunctions and other forms of relief may be granted.
What is the best way to settle divorce issues?
Both spouses can minimize trial time and cost by entering into a written Property Settlement Agreement. This type of agreements settles the rights and responsibilities of each party concerning the issues of child custody, visitation, support, personal property, etc. It must be fair as well as complete and detailed. Both parties must be in agreement with the provisions of the Property Settlement Agreement. This agreement carries the weight of a court order.
What is a Property Settlement Agreement?
A Property Settlement Agreement is a written contract between the parties that sets forth their rights, duties and obligations that arise out of their separation and divorce may include such things as the division of their property, spousal support, attorney’s fees, custody of their children, and child support. Such agreements are encouraged since they may amicably settle the rights of the husband and wife in the estate and property of the other.
Can I receive temporary spousal or child support?
If an agreement cannot be reached between you and your spouse, you can proceed with a hearing. This hearing is referred to as a Pendente Lite hearing. At this hearing, a Judge may grant an award of temporary child custody and support, temporary spousal support, temporary use and possession of the home, injunctions and other forms of relief. The results of this hearing are temporary. The decision, however, allows the parties to either reach a permanent agreement on the issues, or gives them time to prepare for trial on the unresolved issues.