As you probably know, divorce is the legal process of ending a marriage. It can be a complex and emotionally difficult process, particularly when there are disputes involving property, debt, alimony, child custody and child support. In this article, we will provide an overview of a Virginia Divorce and some of the major issues you might encounter. Hopefully, this will help you prepare for the road ahead.
Types of Divorce
There are two types of divorce in Virginia: a Divorce from Bed and Board (also called “a Divorce a mensa et thoro”) and a Divorce from the bond of matrimony (also called a “Divorcea vinculo matrimonii” or an “Absolute Divorce”).
(1) A Virginia Divorce from Bed and Board is a partial or limited divorce provided by Virginia Code § 20-95. It is akin to a “legal separation.” An order or decree for a Divorce from Bed and Board formally establishes that the parties are separated. However, the marriage is not fully terminated. Importantly, you are not allowed to remarry until a Divorce form the Bond of Matrimony is awarded. A Divorce from Bed and Board allows the court to make some big decisions including awarding alimony, determining child custody and support, and distributing property.
(2) A Virginia Divorce from the Bond of Matrimony is permanent and is a complete termination of the marriage provided by Virginia Code § 20-91. A Divorce from the Bond of Matrimony ends your marriage and usually settles all of the issues arising out of the marriage including distribution of property, assignment of debt, child custody, visitation and support. Usually, when we talk about “getting divorced” we really mean a Divorce from Bed and Board. Once you file for a Divorce from Bed and Board, the Court has the authority to enter temporary orders regarding alimony, child custody and support, and distribution property. The Court also has authority to enter final orders on all of these issues when the final divorce is granted.
Grounds for Divorce
To get a Virginia Divorce, your must have a legal reason. The legal reasons are called the Grounds for Divorce. You may have more than one grounds for divorce. A brief summary of the Grounds for Divorce are listed below. You can also read more about the Grounds for a Virginia Divorce here.
Grounds for Divorce from Bed and Board
The are two grounds for a Virginia Divorce from the Bed and Board contained in Virginia Code § 20-95.
(1) Cruelty and Reasonable Apprehension of Bodily Harm
(2) Willful Abandonment and Desertion (Actual and Constructive)
Grounds for Divorce from the Bond of Matrimony
There are both fault-based and no-fault grounds for a Virginia Divorce from the Bond of Matrimony contained in Virginia Code§ 20-91.
The Fault-Based Grounds for a Virginia Divorce from the Bond of Matrimony are:
(1) Adultery, Sodomy or Buggery;
(2) Cruelty or Reasonable Apprehension of Bodily Hurt;
(3) Willful Abandonment and Desertion (Actual and Constructive); and
(4) Conviction of a Felony that includes a sentence of actual imprisonment or confinement in jail for at least one year.
The No-Fault Grounds for a Virginia Divorce from the Bond of Matrimony are:
(1) Separation for a period of at least one year; or
(2) Separation for a period of six months if you and your spouse have no minor children together and you have a written separation agreement.
Merging a Virginia Divorce from Bed and Board into a Virginia Divorce from the Bond of Matrimony
As explained below, you can file for a Virginia Divorce from Bed and Board immediately if you have legal grounds. This can be quite advantageous because you can start to resolve all the major issues involved in your divorce right away. But, the marriage itself still exists. Luckily, Virginia law provides a way to turn a Divorce from Bed and Board into a Divorce from the Bond of Matrimony once the one-year waiting period expires. This is called “merger.” Virginia Code § 20-121. If you have grounds for a Virginia Divorce from Bed and Board, merger offers you a way to get started on a Divorce from the Bond of Matrimony before the one-year waiting period elapses. But, bware: if you don’t file the right documents, you may have to re-file for a Divorce from bed and Board. An experienced Virginia divorce lawyer can help you properly prepare the documents necessary to ensure that you can merge a Divorce from Bed and Board into a Divorce from the Bond of Matrimony without having to re-file the case.
For a Virginia Court to have jurisdiction over a divorce, at least one party must qualify as a bona fide resident and domiciliary of Virginia for at least 6 months prior to filing the complaint for divorce. This usually means that the person maintains their permanent home in Virginia. However, special rules apply to members of the armed forces, students attending schools out-of-state and residents who have accepted employment overseas. You can read more about the Virginia residency requirement. If you aren’t sure if you meet the residency requirement, contact us to schedule an initial consultation.
Waiting Time to File for a Virginia Divorce
If you or your spouse meet the Virginia Divorce Residency Requirements, you can file for divorce as soon as you have legal grounds. As you saw above in the Grounds for Divorce, the Grounds for a Divorce from Bed and Board can also be grounds for a Divorce from the Bond of Matrimony. However, the waiting times are different. Here is a quick summary of the waiting periods for each grounds:
(1) Divorce from Bed and Board: If you have grounds, there is no waiting period to file a Divorce from Bed and Board. But, remember, the Divorce from Bed and Board is not a complete divorce. The marriage isn’t terminated until you are granted a Divorce from the Bond of Matrimony.
(2) Divorce from the Bond of matrimony: Theses are the waiting times to file a Divorce from the Bond of Matrimony.
- Adultery, Sodomy or Buggery: No waiting period. You can file immediately.
- Cruelty and Reasonable Apprehension of Bodily Harm: One year after the acts of occurred. You can file immediately for a Divorce from Bed and Board.
- Willful Abandonment and Desertion (Actual and Constructive): One year after the abandonment or desertion occurred. You can file immediately for a Divorce from Bed and Board.
- Conviction of a Felony that includes a sentence of imprisonment or confinement for at least one year: No waiting period. You can file immediately.
- Separation when you and your spouse do not have minor children together and you have a written separation agreement: Six Months.
- Separation when you and your spouse do not have minor children together but you do not have a written separation agreement: One Year.
- Separation when you and your spouse have minor children: One Year.
To begin a divorce in Virginia, one spouse (the “Plaintiff”) must file a Complaint for Divorce with the circuit court in the county where either spouse resides. The Complaint contains basic information about the parties, such as their names, ages, and addresses, as well as a statement of the Grounds for Divorce (i.e., the reason for the divorce).
After the Complaint is filed, it must be served on the other spouse (the “Defendant”). This can be done by having a sheriff or professional process server deliver the complaint to the defendant, or by having the Defendant sign an acceptance of service. Once the Defendant is served, they have 21 days to file a “responsive pleading” (a document contesting the details of the divorce or requesting that the Court deny the divorce and/or dismiss the case). There are a number of different types or responsive pleadings the Defendant cans file.
If the Defendant does not file responsive pleadings, or if the parties are able to resolve any issues raised in the answer, the divorce can be granted quite quickly. In fact, if the Defendant consents to the divorce and signs the final paperwork, the Court can grant a Virginia Uncontested Divorce without either party having to appear in court. This is called an Uncontested Divorce. You can read more about a Virginia Uncontested Divorce here.
If the Defendant contests the divorce, they often file an Answer to the Complaint. In an Answer, the Defendant can contest the terms of the divorce and assert their defenses to the Grounds for Divorce. You can read more about the Defenses to Divorce here.
If the Defendant won’t sign the final paperwork, the Plaintiff must give testimony in court about the details of the marriage, the separation and the reasons for the divorce. This is called an ore tenus hearing. If the parties have a Written Separation Agreement, the agreement will be presented to the court.
If the parties are unable to reach an agreement on all terms of the divorce, the case may go to litigation. This is a longer and more formal process that can include formal discovery, multiple court appearance and a formal trial. This is commonly called a Contested Divorce. You can read more about a Virginia Contested Divorce here.
Speak to an experienced Virginia Divorce Lawyer to learn more about a Virginia Divorce
At Bourdon & Tortolero, we know that every divorce can be stressful. Trying to do-it-yourself can create additional unneeded stress, unnecessarily delay the process and be more expensive in the long run. An experienced Virginia divorce lawyer can guide you through the process, protect your interests and help you achieve the best possible outcome. If you are ready to get started or would like to get more information about a Virginia divorce, contact us here or call us at (703) 646-8390 to schedule an initial consultation with an experienced Virginia divorce attorney.
Virginia divorce attorney Jon P. Bourdon, Esq. handles divorce matters throughout Northern Virginia including the City of Alexandria, Arlington County, Fairfax County, Prince William County, Loudoun County and the surrounding areas. You can contact Jon directly at firstname.lastname@example.org or by phone at (703) 646-8390.