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Virginia Divorce Requirements

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DIVORCE

Under Virginia Law, you have the right to represent yourself in all legal cases, including divorce.

The legal term for representing yourself is "pro se," pronounced "pro say") which is Latin for "on your own behalf." Representing yourself is not a good idea for everyone. It is important to understand that by representing yourself, you may be giving up important rights. It is very important for you to find out if your spouse has a pension, retirement account, insurance or other significant property before you decide whether to file your own divorce. If you do not ask for such things in the divorce, you will give them up forever.

Before you file for divorce on your own, you need to talk to your spouse, if possible, and find out how he/she feels about the divorce and about the issues mentioned above. This will give you an indication on how to proceed with the divorce.

The law limits the authority of the court to grant divorces (known as a question of jurisdiction-can this court hear this divorce?). The law also dictates when the court has jurisdiction over a divorce proceeding.

Within Virginia, the circuit courts have jurisdiction to hear divorce cases. Generally, the circuit court with jurisdiction for your case is the circuit court in the county where you live or the circuit court in the county where your spouse lives. When you file the relevant papers, you must have stated your grounds for that court to have jurisdiction. If not state correctly, your spouse could file a motion to dismiss your case.

After you file your papers, your spouse has 30 days (if your spouse lives in Virginia), 60 days (if your spouse lives outside of Virginia, but in the United States), or 90 days (if your spouse lives outside the United States) to respond to your request for divorce (known as a Complaint. If your spouse fails to respond, the court will proceed with the divorce so long as service of process has been completed correctly. Whether or not your spouse responds, you and your corroborative witness will have to appear before the court (in almost all cases the hearing will be before a master) in a hearing scheduled by the clerk. After your corroborative witness testifies and you have presented other evidence, and if your spouse answers or shows up, then your spouse will also have a chance to do the same. At the end of the hearing, the court (in most cases it will be a master who makes a recommendation to the court) will decide at some later time (normally 30 days) to grant a divorce and a settlement of marital issues.

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RESIDENCY

In order to start the divorce process you must file a complaint in the circuit court where you or your spouse lives. In your complaint or at the hearing, you will have to meet the residency requirement for the ground you specified above. Divorce laws apply only to the residents of a state, and each state has its own residency requirements. One of the spouses must have been a resident of Virginia for at least 6 months prior to filing for divorce. The divorce may be filed for in: (1) the county or city in which the spouses last lived together; or at the option of the plaintiff: (2) the county or city where the defendant resides, if the defendant is a resident of Virginia; or (3) if the defendant is a non-resident of Virginia, the county or city where the plaintiff resides. [Code of Virginia; Title 8, Section 8.01-261; and Title 20, Sections 20-96 and 20-97].

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SAME STATE, DIFFERENT ADDRESSES

You do not have to remain at the same address to fulfill your residency requirement. You can move anywhere within the state from which you are filing. The forms do not require you to list all addressees, but you should be prepared to prove where you lived during the separation in the final hearing.

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PROOF OF RESIDENCY

Your residency is substantiated by your sworn complaint. The testimony is all that most courts require to verify residency. But cases have been dismissed and even overturned because of improper proof of residency.

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RESIDENT VERSUS NONRESIDENT

A court may take on a divorce proceeding even if your spouse is not a resident of Virginia. If you or your spouse move to another state after the divorce has been filed, you may still have your case heard in Virginia.

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HOW TO ESTABLISH RESIDENCY

Register to vote. Get a driver's license. Get a job. Open charge accounts. Register your car. Take out a library card. The list is endless. But whatever you do, do not maintain a residence in another state that could imply that you do not intend to remain in the state from which you file.

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COUNTY JURISDICTION

Virginia has counties that govern which court your divorce will take place in. This is called venue. The divorce must be filed where either the plaintiff or defendant resides or where either is regularly employed or has a place of business.

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DIVORCE: Fault and No-Fault

Divorce is the ending of a marriage ordered by a court. In Virginia. No-Fault grounds for divorce: No-Fault: (1) living separate and apart without cohabitation for 1 year; or (2) living separate and apart without cohabitation for 6 months if there are no minor children and the spouses have entered into a separation agreement. [Code of Virginia; Title 20, Section 20-91].

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Grounds: Fault Divorce

There are three principal players involved in your marriage that will also be involved in your divorce: you, your spouse, and the state. You cannot simply break up, saddle your charger, and ride off into the sunset. Among other legal considerations, you have to give the state an acceptable reason why you should be allowed to break up. The reason is known as the ground for your divorce. Over the years each state has enacted legislation that governs acceptable grounds.

Grounds  for Divorce in Virginia are:

(1) 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; or

(4) On the application of either party if and when the husband and wife have lived separate and apart without any cohabitation and without interruption for one year. In any case where the parties have entered into a separation agreement and there are no minor children either born of the parties, born of either party and adopted by the other or adopted by both parties, a divorce may be decreed on application if and when the husband and wife have lived separately and apart without cohabitation and without interruption for six months.  A plea of res adjudicata or of recrimination with respect to any other provision of this section shall not be a bar to either party obtaining a divorce on this ground; nor shall it be a bar that either party has been adjudged insane, either before or after such separation has commenced, but at the expiration of one year or six months, whichever is applicable, from the commencement of such separation, the grounds for divorce shall be deemed to be complete, and the committee of the insane defendant, if there be one, shall be made a party to the cause, or if there be no committee, then the court shall appoint a guardian ad litem to represent the insane defendant.

[Code of Virginia; Title 20, Section 20-91].

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WAITING PERIODS FOR ABSOLUTE DIVORCE

Separation agreements are specifically authorized by statute and will reduce the time required for living apart by 6 months. In addition, a spouse may waive service of process, but the waiver of service of process form must be signed in front of the clerk of the court. The testimony of either spouse must also, generally, be corroborated by a witness. [Code of Virginia; Title 20, Sections 20-99, 20-99.1:1, 20-107.3, and 20-109.1].

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ADULTERY

Adultery is sexual intercourse between a married person and someone other than the spouse. In Virginia, neither cunnilingus nor fellatio, which the law defines as sodomy, is a ground for divorce and generally neither is considered adultery. The sexual intercourse must involve some penetration of the female organ by the male organ, but a "completion" of the sexual intercourse is not required.

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HOW TO PROVE ADULTERY

There probably is no such thing as a pleasant adultery case; because names, dates, places, paramours, and the like have to be brought out in the open. If your spouse no longer cares about what you know and is open about the affair, you're lucky. You can then catch your spouse flagrante delicto, which means you have your spouse in the flagrant wrong and may not have to worry about hiring detectives. However, you may still need a detective to prove your case in court. There is still a need for a corroborative witness, such as a mutual friend or neighbor, who has no stake in the matter except telling the court what he (she) witnessed.

Most adultery cases are proven by circumstantial evidence, which means that you have to establish that your spouse had the disposition and opportunity to commit adultery.

Public displays of affection, such as hand-holding, kissing, and hugging, between the guilty spouse and the paramour are generally sufficient evidence to indicate an adulterous disposition. Opportunity may be proven by showing that your spouse was seen entering the paramour's apartment at 11 P.M. and not coming out until 8 A.M. the following morning and that they were alone. If you can only prove disposition but not opportunity, the courts may not allow your divorce because the court may reason that it is just mere speculation. The same is true if you only show that there was opportunity, but cannot prove disposition. When you think about it, this seems to make sense.

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NAMING THE CO-RESPONDENT

Sometimes known as a paramour, the co-respondent is the person whom you charge as having committed adultery with your spouse. The co-respondent has the right to hire a lawyer and file an answer to your complaint. Naming co-respondents can get sticky, particularly if your facts are incorrect. You might be damaging the reputation of an innocent person.

THE ADULTERERS

Adulterers are not equal under the blanket of the law. In Virginia, adultery may impact custody if the adultery is proven to have harmed or impaired the children. Adultery does not necessarily affect alimony awards in Virginia. It will, however, be a factor for consideration in awarding alimony.

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CONDONATION

Generally, if you knew your spouse committed adultery but continued to live and cohabit with your spouse, then adultery cannot be used as a ground. Once you resume marital relations, after you learned of the adulterous act, the courts feel that you have forgiven, or "condoned," the act. But, if your spouse starts having affairs again, you can then sue on grounds of adultery. Or, if your spouse has had several affairs and you knew of and condoned only one, you may file on adultery regarding the newly discovered affairs.

In Virginia, however, condonation does not necessarily bar the action for divorce; it now only a "factor for consideration."

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CRIMES

If your spouse has been convicted-not simply charged-of a crime, that is a ground for divorce in Virginia. The conviction can be for either a misdemeanor or a felony in any state, and the spouse has to serve at least 12 months of a minimum three-year sentence in a penitentiary or penal institution.

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DESERTION AND ABANDONMENT

For all practical purposes, desertion and abandonment are one and the same. .There are two elements that have to be present in order to constitute desertion: the willful desire or the intent to desert and the cutting off of the marital relationship. In Virginia, the abandonment has:

  • continued for 12 uninterrupted months;
  • must be willful and malicious;
  • beyond any reasonable expectation of reconciliation.

There are two types of desertion-actual desertion and constructive desertion.

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ACTUAL DESERTION

When your spouse packs bags, books, and toothpaste, walks out the door, moves into another apartment, and stays there, he or she is guilty of actual desertion. The spouse voluntarily leaves and has no plans to return except perhaps to pick up a forgotten belonging.

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CONSTRUCTIVE DESERTION

You also can be deserted even if your spouse does not leave. If your spouse's behavior is so cruel or despicable that you find yourself dialing suicide prevention, you can leave and charge your spouse with constructive desertion. Constructive desertion is basically defined as one person leaving the relationship-not necessarily the home. The following are some cases of marital misconduct that have been applied to constructive desertion:

Willful refusal of sex, without just cause and nonperformance of other marital duties as to practically destroy the home life. The denial of sex alone does not constitute desertion. The spouse also has to stop carrying out the mutual responsibilities of the marital relationship.

Conduct that endangers a spouse's life, safety, health, and even self-respect (although an isolated assault or two will not necessarily constitute cruelty unless the act was particularly severe and atrocious).

One spouse's failure to move if, for example, the other gets a job transfer. The exception is if one spouse's choice of domicile is unsafe or unsuitable for the other.

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IF THE DESERTER RETURNS

Your spouse has left you, spent six months chasing butterflies, and suddenly wakes up one morning and decides that you are the one after all. In good faith, your spouse shows up at your doorstep and begs you to forgive and forget. In Virginia, if you say yes, then all is well. But if you say no and refuse to even see or listen to your spouse, then, strange but true, your spouse could sue you for desertion. The waiting period would start all over again beginning with the time of your refusal. Keep in mind that "good faith" is the key. If, for example, your husband deserted you and then tried to return only after realizing what the high costs of his alimony and legal fees would be, his desire to return would not necessarily be considered "good faith".

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INSANITY

Your spouse must be judged permanently and incurably insane and be confined in an institution or a hospital for a minimum of three years before filing. To prove insanity, two or more psychiatrists are needed to testify that your spouse is incurable and that there is no hope of recovery. The court will appoint an attorney to act in the defense of your spouse whom you purport to be insane. These costs are usually borne by you. In Virginia, you also must be a resident for two years before filing.

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BIGAMY

Knowingly entering into a bigamous marriage is also a ground for divorce.

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VOLUNTARY SEPARATION NO- FAULT DIVORCE IN Virginia

The State of Virginia has a "no fault" divorce known as voluntary separation. It usually means that you and your spouse have separated after mutually and voluntarily agreeing that you no longer wish to live together as husband and wife and that there is no hope for a reconciliation. Your spouse cannot threaten or blackmail you into leaving; you separate because you both want to. To get a divorce on this ground you have to be separated (not living under the same roof) without interruption (not even one night) without cohabitation (not a single incident of sexual intercourse) for one year and there is no hope of reconciliation. Remember though, if this is not a mutual and voluntary situation you will have to use another ground to get a divorce.

There are two types of voluntary separation: one for limited divorce; and for absolute divorce. Remember that a limited divorce does not completely end your marriage.

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SEPARATION WITHOUT COHABITATION

If your spouse wants a separation and you do not, it is still possible to file under this ground, but the wait is longer. Virginia requires two years of living apart. Whether the separation is voluntary or not so voluntary, it has to be continuous. This does not mean that you and your spouse can't meet for lunch or dinner on occasion, but it does mean that you cannot have sexual relations with each other. If a candlelight dinner intended to discuss your children's report cards ends up kindling your sexual desire for each other, and you follow your passions into bed, then your waiting period has to start all over again. It will begin the day after your bedroom encounter even if you've been on good behavior for 11 months. Sex between you and your spouse is strictly forbidden during your waiting period. Sex with others can be a problem, too; the grounds for your divorce could change.

You must live in separate abodes. Even if one person were to live in the attic and the other in the basement, it won't count for "living separate and apart."

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GROUNDS FOR LIMITED DIVORCE OR LEGAL SEPARATION

Many people who, for personal or religious reasons, do not wish to obtain a full divorce can get a "limited divorce" instead. Virginia has no legal separation. A "Limited Divorce" in Virginia is similar to what is called a "Legal Separation" on other states. Limited divorces are very much like an absolute divorce with the major difference being that the parties cannot remarry. You are, in effect, still legally married at the same time that you are legally separated.

In order to obtain a limited divorce in Virginia, you must meet residency requirements, grounds, and other legally prescribed laws just as you have to in a case for absolute divorce. Limited divorces can also can involve property settlements, alimony, and child support and custody.

The grounds for obtaining a limited divorce in Virginia are cruelty or excessively vicious conduct to complainant or minor child; desertion; and voluntary separation beyond any reasonable expectation of reconciliation. The court may require that the parties participate in reconciliation efforts.

The Virginia courts may grant a limited divorce even though you are seeking an absolute divorce. The courts also may decree these divorces forever or for a limited time only. And finally, Virginia's limited divorces may be revoked by the courts at any time upon the joint applications of the parties to be discharged. In such cases, you return to the state of being legally married.

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PROVING GROUNDS FOR LIMITED DIVORCE OR LEGAL SEPARATION

In order to prove the grounds for a limited divorce, you must go through the same processes of proof as you would in a case for an absolute divorce. The courts give the same serious weight to limited divorces as they do to absolute divorces.

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Source: How To Do Your Own Divorce in Virginia by Richard S. Granat (2004).

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