To file for divorce in Virginia, you have to file under specific “grounds.” We cover the grounds in our Free Resource, Where Do I Start With a Virginia Divorce? Under certain grounds, when you are proving that one party is at fault in the divorce, you can file immediately. This applies to situations where one spouse has been deserted by the other (abandonment/desertion) or has to leave to protect their own safety (cruelty/abuse). Grounds for divorce can also include adultery committed by one party within the last five years or when a spouse is convicted of a felony resulting in incarceration for one year or more during the marriage. In these “fault-based” circumstances, you can file for divorce immediately and simply have to prove your case in court.
All other divorces fall under the “no fault” grounds. This contains the majority of Virginia divorces. For couples filing for divorce under the “no fault” grounds, Virginia has a policy intended to make couples really think through getting a divorce and be certain they are making the right decision. This is through required separation.
In order to file for divorce under the “no fault” grounds, a Virginia couple first has to be separated for at least twelve months. There is, of course, one exception to the rule: if you do not have any minor-aged children and you have resolved all issues related to your divorce in a written agreement with your spouse, then you can file after only six months of separation.
So how does separation begin? In Virginia, there is no document you have to get certified that makes your separation official. It just begins automatically on the day when you or your spouse decide you are separating and you no longer live together like a married couple. Now, that doesn’t mean the law is entirely uninvolved.
In order to get a divorce, you have to prove that when you separated, you or your spouse intended for it to remain permanent – and it did remain permanent. You also have to prove that you have not been living together as a married couple since separating. For your “no fault” divorce to be approved, you have to prove the legitimacy of your separation, and that it began at least twelve months prior to when you filed for divorce.
Now, if legal separation means moving out with the intention of it staying permanent, how does that differ from “desertion,” where you can file for divorce immediately? Desertion typically means that one spouse has ceased all contact in any form with the other and is no longer performing marital duties whatsoever – such as contributing to rent or mortgage payments, helping to pay off marital debts, withdrawing from the relationship and care of the children. Desertion also often involves one spouse leaving the state or home without maintaining any contact whatsoever with their spouse.
In order to get a standard “no fault” divorce in Virginia, married couples must first be separated for at least twelve months. You don’t have to do anything to formally “start” your year of separation – but when the marriage is drawing to a close, you should contact a lawyer. For help with all aspects of your Virginia divorce, contact Rinehart Bryant, PLLC today! We help you like family would.