What Type of Divorce Should I Pursue?
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What Type of Divorce Should I Pursue?

| Dec 2, 2020 | Divorce

After making the difficult decision that a marriage is indeed unsalvageable and that a divorce is necessary, the next important consideration is determining what kind of divorce best serves your specific circumstances and desires. As such, you will need to determine whether you will proceed by requesting a divorce under one of two options: (1) No-Fault Divorce, or (2) Fault-Based Divorce.

(1) No-Fault Divorce

Under Virginia Code § 20-91, divorce can be filed based on you and your spouse living separate and apart, without interruption and without cohabitation.

One of the most crucial requirements for obtaining a no-fault divorce is that you and your spouse must live separate and apart for a specific amount of time. The necessary separation time will be either: (1) six months, or (2) one year, depending on the particulars of the marriage:

1. Six-Month Requirement: A no-fault divorce may be filed after a separation of six months, only if the following conditions exist:
a. You and your spouse have no minor children together at the time of filing; AND
b. You and your spouse have both signed a Separation Agreement, resolving all issues revolving around the marriage.

2. One-Year Requirement: For all other marriages where minor children are involved, and/or where no Separation Agreement has been entered, there is a mandatory requirement that you and your spouse must have remained separated for at least one year at the time of filing.

In order to file for No-Fault Divorce, whether based on six months or one year of separation, it is important to note that the duration of said separation must be continuous and without interruption. For example, in a scenario whereby you and your spouse separate, but resume marital relations and/or cohabitation at any point during the separation, the clock for the statutory separation period restarts from the time of the resumption of marital relations. This holds true no matter how brief the interruption. Therefore, it is very important that once you have made the decision to seek a No-Fault Divorce, that you do not resume marital relations with your spouse, unless you are absolutely sure that you no longer wish to divorce.

(2) Fault-Based Divorce

Depending on your specific facts and circumstances, you may have a valid claim Under Virginia Code § 20-91, based on one or more of the following recognized grounds for divorce:

1. Adultery: In the event of an unfaithful spouse, you may want to proceed on the grounds of Adultery. It should be noted that adultery is a very difficult ground to prove, and can only be used if you did not condone or forgive the adultery, and did not resume marital relations with the adulterer after the infidelity was discovered. (Note: adultery requires no waiting period of separation in order to finalize the divorce).

2. Cruelty: In the event that you are trapped in a physically abusive marriage with your soon to be ex-spouse, you may seek a divorce on the ground of cruelty. Likewise, emotional abuse may also constitute as grounds for cruelty in the event that you are suffering from persistent and extreme abusive language, degradation, and/or repeated neglect by your spouse. One must prove that there is a reasonable apprehension of bodily harm, whether it be physically or mentally. (Note: Even though cruelty is a valid basis for a fault-based ground for divorce, there must be a minimum of one-year period of physical separation between you and your spouse to finalize a divorce).

3. Desertion: You may have a valid basis for a divorce on the ground of desertion in the event that your spouse has willfully abandoned the marriage with the intent that the separation be permanent. In order to prevail on desertion, you must be able to prove that the abandonment was without cause and against your own wishes to continue the marriage (if you agreed to your spouse leaving the marriage, then there is no valid claim for desertion). (Note: Just as with cruelty, filing on desertion also requires a one-year separation period in order to finalize the divorce).

4. Constructive Desertion: Under a scenario whereby your spouse has not actually physically left the marital residence/the marriage, you may still have a basis to file on the ground of constructive desertion. While still physically present, constructive desertion may exist when your spouse has deserted the marriage through their actions and behavior. For example, if you have to vacate the residence due to cruelty, or some other persistent actions that put you in reasonable apprehension of your physical or mental health, there may exist a ground for constructive desertion (in addition to the possible ground of cruelty noted above). Similarly, if your spouse has ceased all marital relations through neglect of the marriage, there may be a valid claim for constructive desertion. (Note: Constructive desertion also requires a one-year separation period to finalize the divorce).

5. Conviction of Felony: You may have a valid ground for divorce if your spouse has been convicted of a felony, given that the following facts exist: following the marriage, your spouse is convicted of a felony, and subsequent to that felony convicted, they are sentenced to confinement for more than one year. In order to succeed under this ground, you must not resume cohabitating with the convicted spouse after you obtain knowledge of the conviction and confinement.

Conclusion

As you can see from the above, there are number of important considerations that must be evaluated when making the crucial decision of how to proceed with your separation and divorce. Every marriage, and subsequent separation, is different depending on the specific facts and circumstances involved. It is imperative that you speak with an experienced attorney to evaluate all of your options, and the best path to travel given your particular situation and desires. It is also vital that you choose an attorney that has the required knowledge of the varying grounds for divorce, including the necessary elements and evidence needed for proving the alleged basis for divorce. Call one of our skilled attorneys at Strentz, Greene & Coleman, PLC, and let us help assist and guide you in determining what will work best for your individual facts and needs. Contact us at (540) 479-1511, and visit our website at virginiafamilylawattorney.com

Thomas E. Dodd, III, Associate Attorney