Virginia Divorce FAQs
What if I or my spouse has committed adultery?
If you are the one who has found someone else, honesty is the worst policy. Do not tell all. Decide if the marriage is over for you, and get a lawyer. Do not make overly generous offers of settlement out of guilt. If your spouse has found someone else and you think the marriage is over, consult an attorney before you confront your spouse so that you do not inadvertently condone your spouse’s behavior or prejudice your ability to secure the evidence of adultery you may need to present in court if you decide to file for divorce based on adultery.
If I am separated from my spouse and I date other people, can I be charged with adultery?
Yes. Either party can allege adultery at any time up until the divorce. Even if you have a valid separation agreement, it is still technically adultery if you engage in sexual relations with someone who is not your spouse while you are still married. In addition, adultery in Virginia is still a crime.
What is desertion?
Desertion is intentionally leaving the marriage with the desire that separation be permanent, against the wishes of the other spouse; desertion is not merely taking a trip. Separation by mutual agreement is not desertion. To prove desertion, one must prove an intent to end the marriage on the part of one spouse, prove that the spouse who was left did nothing to justify the other’s leaving and prove that the leaving was against the wishes of the person who was left. To prove desertion by one spouse, the other spouse must be blameless. To keep your options open, if your spouse tells you he or she is contemplating leaving, don’t agree! If you are contemplating leaving the marital residence, consult an attorney first, if at all possible. Even if you are justified in leaving, removing yourself from the marital residence can have potentially negative impacts on a custody determination or prevent you from having access to important financial records and other documents kept in the home, to name just a couple of considerations you would want to first discuss with an attorney.
Can my or my spouse’s desertion be excused?
You or your spouse can be justified in leaving the marriage if you are told to get out, if you are abused by your spouse, if the actions or conduct of your spouse is causing you to suffer health problems and your spouse refuses to change, or if the conditions you are living under in the marriage are what a court might otherwise find to be intolerable.
What is constructive desertion?
You can charge your spouse with constructive desertion when your spouse has not, and perhaps will not, physically leave the marital residence, but through his or her actions has essentially already left or deserted the marriage. For example, when a spouse has been abusive or cruel, and his or her behavior is so severe that the blameless spouse leaves the home to escape, the cruel spouse is said to be guilty of constructive desertion even though that spouse remains in the home. When your spouse is guilty of constructive desertion, it can be a justification for your leaving the home. However, unless you are in imminent danger, you should always consult an attorney before removing yourself from the marital home.
What constitutes cruelty?
Cruelty usually involves violence, or fear of violence; one must also prove reasonable apprehension of bodily harm, which can include harm to one’s mental state as well as one’s physical well-being. Acts of cruelty are usually cumulative, augmented by each additional act, although at first they are condoned to a certain point. Proof of a single incident which is so vile as to shock a court may also be sufficient for cruelty.
How long does it take to get a divorce?
For divorces based upon either desertion or cruelty, a one-year period of physical separation is required to finalize the divorce. There is no waiting period required for adultery, and upon proof of adultery, the court can grant an immediate divorce. No-fault divorces also require a separation period of one year (six months if there are no minor children and there is a written separation agreement). Practically speaking, however, contested divorce actions often take more than a year.
What kind of proof is required to get a divorce?
All grounds for divorce, including a no-fault divorce, must be corroborated by an independent witness who knows of the situation by means other than your telling the witness what happened. The standard of proof for adultery is clear and convincing; usually a private investigator will be required to prove that your spouse had inclination and opportunity to commit adultery. Inclination can be a single hug or a kiss in public, and opportunity is usually spending the night with someone in a room or residence without other people around. Even if your spouse admits adultery, you still need an independent witness in addition to you and your spouse. The standard of proof for desertion and cruelty as well as for a no-fault divorce is a preponderance of the evidence standard; you must have an independent witness in addition to your own testimony to verify the facts.