Relentless Virginia Divorce Advocacy
You and your spouse may not agree on many things, but the one thing you can both agree upon is that you both want to end the marriage. Even though you are in agreement, it will still require a court order to legally terminate the marital relationship.
Divorce cases in Virginia are heard in the circuit court in which either you or your spouse reside. Generally, obtaining a divorce requires you to file a lawsuit against your spouse in which you prove, among other things, that you have grounds upon which the court can grant your request for a judgment ending the marriage. In other words, you must prove that your spouse was at fault in causing the breakup of the marriage
No fault divorce in Virginia and separation
Virginia does provide a method by which you and your spouse can obtain a no fault divorce. A no fault divorce may be granted based upon separation under one of the following conditions:
- You and your spouse have lived separate and apart for at least one year under a mutual agreement that you no longer wish to continue living together as a couple; or
- You and your spouse do not have minor children with each other, and the two of you have lived separate and apart for at least six months under the terms of a written separation agreement.
When one of the separation grounds is used, it is common for it to be an uncontested divorce. This is usually because the initial separation was probably based upon mutual agreement and the working out of child custody, support, property distribution and other issues before the divorce action is commenced.
Fault grounds for divorce
Terminating the bonds of matrimony is not as easy when the parties cannot agree to a separation that would provide them with the grounds for a no fault divorce. Virginia, as do many other states, requires a legal justification for the termination of a marriage. The Commonwealth recognizes the following grounds for divorce:
- Adultery, sodomy or buggery
- Conviction of a felony and confinement to prison for more than one year after the marriage, and provided there has been no cohabitation between the parties after the prison sentence ends
- Acts of cruelty causing fear of bodily harm
- Willful desertion or abandonment for a continuous one-year period
Obtaining a divorce based upon the fault of the other party requires that you produce evidence to prove the allegations for the ground upon which you are relying. The divorce ground of willful desertion or abandonment is an example of how difficult this can sometimes be.
Assuming that your spouse abandons you and is not heard from for nine months, you might think that in another three months you would have grounds for a divorce. You might be correct, but if your spouse knocks on the door during the 12 months, begs forgiveness and wants to return home, a court might find that continuous and voluntary abandonment has not been proven.
As experienced divorce lawyers, we know the legal requirements for proving each of the grounds for divorce in Virginia. We review the facts and circumstances surrounding the breakup of your marriage to determine which grounds for divorce exist and design a strategy for how best to prove them.
You might find yourself in a situation in which your spouse did not physically leave the marital home, but the bonds of matrimony are, nonetheless, broken. Reviewing the facts with a seasoned divorce attorney from our office could reveal evidence of constructive abandonment.
Constructive abandonment may occur when you leave the home for your physical safety or mental well-being due to conduct committed by your spouse. It might also exist when you and your spouse live in the same household, but your spouse refuses to engage in normal sexual relations although physically able to do so.
How an Annulment Differs from a Divorce
A divorce ends what had been a legally valid marriage recognized by the Commonwealth of Virginia. An annulment, on the other hand, results in a declaration by a court that a valid marriage never existed. Grounds are needed to begin an annulment proceeding in Virginia in much the same manner as you need grounds for a divorce. The grounds for an annulment include:
- Bigamy: One of the spouses is already legally married to another living person
- Fraud or duress: Obtaining the consent of the other party to a marriage through deceit, trickery, force or threats of force
- Mental incapacity: When one of the parties is incompetent or otherwise unable to knowingly give consent to the marriage
- Incest: Virginia prohibits marriages between blood relatives
- Underage: Both parties must be 18 years of age or older to consent to a marriage
- Impotence: One spouse did not disclose the fact that he or she is incapable of engaging in sexual relations
The grounds for an annulment are not always as clear cut as they might at first appear to be, so consulting with a knowledgeable divorce attorney is essential. For instance, continuing to live as husband and wife after discovering that your spouse is impotent could nullify it as grounds for an annulment.
An annulment means that you were never legally married to your spouse. Although courts may decide issues of involving children of the marriage, such as child support, visitation and support, they do not have the power to order the payment of alimony or deal with property division issues as they can in a divorce case.
Obtaining a separation in Virginia
Virginia offers couples a limited divorce that is referred to as a “bed and board” divorce. A bed and board divorce is what some states refer to as a legal separation. It accomplishes everything that a divorce does except for the termination of the marriage. The parties to a bed and board divorce are legally separated, but their marriage is still valid, so they are not free to get married again without obtaining a divorce.
The grounds for obtaining a bed and board divorce are the same as for a divorce terminating the marriage. Bed and board divorce is usually sought by couples who, for religious reasons, do not want to terminate the marriage, but they want to live apart after settling issues related to children, support and property distribution.
Looking out for your interests under equitable distribution
Virginia is an equitable distribution state concerning property owned by the parties to a divorce proceeding. Property is classified as marital property or separate property. Marital property is property the parties acquired during the marriage. Marital property is not limited to property jointly owned by the parties.
Separate property is property that was acquired by one of the spouses prior to the marriage. It may also include property inherited or received as a gift by one of the spouses during the marriage from someone other than the other spouse. Mixing separate property with marital property could cause a court to treat it as marital property.
The importance of the distinction between marital property and separate property is that courts will equitably distribute or divide marital property between the parties as part of the divorce. Separate property remains the property of the spouse to whom it belongs.
Property settlement agreements
Whether it is part of a divorce in which the bonds of matrimony are terminated or a bed and board divorce, it is better for a married couple to reach agreement on the various issues in the case instead of leaving them to a judge to decide. A negotiated property settlement agreement becomes a legally enforceable document that sets forth the rights and obligations of the parties to such matters as:
- Child custody and visitation
- Spousal support
- Division of marital and separate property
- Child support
- Other issues in the marriage requiring resolution
Our innovative and savvy attorneys take the time to review all aspects of your case with you to design a negotiation strategy to obtain a property settlement agreement that meets your immediate and long-term needs. As with other aspects of your divorce, if a negotiated settlement cannot be reached, we are prepared to litigate the issues to achieve the best possible result for you.
A Hard-working Virginia Divorce and Family Law Attorney Can Help
At the Smith Law Firm, P.L.C., our attorneys and staff understand how difficult divorce, child custody and other family law issues can be for you. Being served with divorce papers can come without warning and leave you too shocked and shaken to know what to do.
Our team of compassionate and highly-skilled family law and divorce lawyers are here to help you. Whether through innovative and shrewd negotiating tactics or aggressive and competent courtroom abilities, we will fight to achieve what is best for you.