by VA Family Law Firm

Divorce, Family LawFebruary 11, 20210 comments

Family Law Attorney Alexandria | Reasons for Divorce in VA

Whatever the reason, if you are considering a divorce, you probably have a lot of questions. The first step is to find a family law attorney to help you through this process. There are different types of divorce and different rules for particular situations. Not to mention the changes in divorce hearings due to COVID.

Reasons for Divorce

In Virginia, there are many grounds for divorce.  Some are fault grounds, others are no fault. The grounds for divorce are:

• Adultery, sodomy, or buggery. These are extremely difficult to prove, requiring clear and convincing evidence, and can’t be used as grounds for divorce if you condone the act by continuing to maintain the marital relationship with your spouse after the act is committed.
• Your spouse’s conviction of a felony and sentence to more than one year in prison.
• Physical cruelty. Generally, there is no mental cruelty in Virginia.  However, in certain instances the courts do find that pervasive mental cruelty may be sufficient for a finding of cruelty.    This ground requires a one year waiting period before a divorce can be finalized..
• If your spouse leaves you without a good reason, it is desertion. This requires a one year waiting period before a divorce can be finalized.
• Constructive desertion. If your spouse forces you to leave without a good reason, generally due to cruelty, it is grounds for a divorce. However, it requires a one year waiting period before a divorce can be finalized.
• Uncontested or “no fault” divorce. One year of separation is required. Separation is defined as not cohabitating as a married couple. In most instances, this means not living together.  However, there are circumstances where a couple can be considered separated but still under the same roof.
• Divorce from bed and board. This procedure means that the two parties remain legally married, but all other rights including child support and custody as well as equitable distribution of property are settled. This is typically filed when one party wants to initiate divorce proceedings, but the parties have not yet been separated for one year..

Who Can File for Divorce?

You or your spouse must be a resident and domiciliary of  Virginia for at least six months before you can file for divorce. Divorce is filed in the Circuit Court, usually in the county or city that you have lived in with your spouse, or where the defendant (the person against whom the divorce is filed) currently lives.

Your spouse cannot prevent you from getting a divorce in Virginia. However, they can delay the divorce by disputing the grounds for divorce, property issues, custody, child support, alimony, or marital debts. If this occurs, you may need to go before a Circuit Court judge.

If there are no disputes, your divorce can be finalized without going to court. But how long does divorce take? If the parties have an executed agreement, finalizing the divorce can take several weeks from the time it is filed until it is granted. However, contested divorces can last much longer, sometimes several years.

Divorce Steps

There are generally five steps to a divorce. First, the divorce papers are filed with the court. These papers are called a Complaint and must be drafted in correct legal format to be accepted. Then the court issues a Summons.

Second, the Complaint and Summons are served. This means they are legally delivered to the Defendant. Rules of service are complicated. Just giving your spouse a copy of the complaint and summons is not sufficient.

Third, if the case is uncontested, evidence from one of the parties, and a third party corroborating the separation, is taken by a deposition of by a signed affidavit. This usually occurs in the lawyer’s office. The deposition is recorded, typed, and printed out, or, in the case of the affidavit, typed, printed and signed in front of a notary public. In some cases, evidence is taken before the judge in an oral hearing. If the divorce is contested, the evidence will be taken in court.

Fourth, the depositions or affidavits, a proposed Final Decree of Divorce, and other papers are sent to the judge to be reviewed.

Finally, if everything is in order, the judge signs the Final Decree of Divorce and your proceedings are complete.

Annulment

Some people may qualify for an annulment instead of a divorce. An annulment is a legal decree that a marriage is void. Certain marriages are void, meaning that they cannot continue regardless of whether the parties wish them to.  Other marriages are voidable, meaning that the marriage can be declared void by an annulment, but can also be affirmed.

If an annulment is granted that means that the marriage never existed.  Therefore, a judge cannot award alimony or divide property in an annulment proceeding.   However, either party can petition the juvenile and domestic relations district court or a judge can decide issues of custody, visitation and child support.

• The following are grounds for an annulment in Virginia: Either party consented to the marriage under condition of fraud or duress.
• Either party was physically or mentally incompetent.
• Either party was a felon or prostitute without the other’s knowledge
• Either party is impotent.
• The wife was pregnant by another man without the husband’s knowledge.
• The husband fathered a child born to another woman, without the wife’s knowledge, within 10 months of the marriage.
• Failure to have a marriage license or to have the marriage solemnized according to law.
• One of the parties was married to someone else at the time of this marriage.
• Either party was under the age of 18.

Some of these grounds have specific rules, and there are defenses to an annulment.  You should discuss your situation with an attorney, who can explain the specific rules and determine if your situation qualifies for an annulment.

Family Law Attorney in Alexandria

If you are considering divorce or annulment, please contact us. Our award-winning attorneys have the knowledge, experience, and skill to help you through the divorce process and achieve the best outcome for you.