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Grounds for Divorce in Virginia

October 24, 2016

Whether one is contemplating a divorce or is going through a separation, amicable or hostile, it is important to note what the law requires in order to move forward with a divorce action.  In Virginia, there are three fault grounds for an absolute divorce: (1) adultery, sodomy, or buggery committed outside the marriage[1]; (2) conviction of a felony subsequent to the marriage[2]; and (3) cruelty and desertion after a period of one year form the date of the act.[3] 

Adultery involves a person who, being married, voluntarily has sexual intercourse with another person who is not his or her spouse.[4]  Although adultery need not be proved beyond all doubt, the evidence must still be clear and convincing evidence, independent of the parties’ admissions.[5]  Clear and convincing evidence is defined as “that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established.  It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases.  It does not mean clear and unequivocal.”[6] 

An absolute divorce may also be granted where either of the parties, subsequent to the marriage has been convicted of a felony, sentenced to confinement for more than one year, and confined, and cohabitation has not resumed after knowledge of such confinement.[7]

Finally, regarding fault based claims for divorce, an absolute divorce may also be granted when either party has been guilty of cruelty, caused reasonable apprehension of bodily hurt, or willfully deserted or abandoned the other, and an absolute divorce may be decreed to the innocent party after a period of one year from the date of such act.[8]

If a separation of parties is amicable and no fault based claims for divorce can be made, an absolute divorce may also be granted on the application of either spouse if and when the husband and wife have lived separate and apart without any cohabitation or interruption for a period of one year or more.[9]  If the parties have entered into a separation agreement and there are no minor children, then an absolute divorce may be granted if the husband and wife have lived separate and apart without cohabitation or interruption for a period of six months or more.[10]

However, if a party has alleged one or more of the grounds for divorce set forth above, it is generally held that if the plaintiff in the divorce suit cohabits with the defendant after knowledge of the marital fault, then the plaintiff has condoned such conduct, and a fault ground divorce therefore cannot be granted.[11] 

A divorce can be a tremendously difficult time in one’s life, which may involve significant financial matters or more importantly, the care of the parties’ children.  The more information someone can have during what can oftentimes be a very confusing process, the better.

Pender & Coward attorney Naveed Kalantar handles a wide range of family law matters.  Please contact Naveed with questions at (757) 490-6251 or nkalantar@pendercoward.com. 

[1] Virginia Code Ann. § 20-91(A)(1).

[2] Id., § 20-91(A)(3).

[3] Id., § 20-91(A)(6).

[4] Virginia Code Ann. § 18.2-365. 

[5] Coe v. Coe, 225 Va. 616, 622, 303 S.E.2d 923, 927 (1983); Seeman v. Seeman, 233 Va. 290, 293, 355 S.E.2d 884, 886 (1987).

[6] Seeman, 233 Va. at 293, 355 S.E.2d at 886.

[7] Va. Code Ann. § 20-91(A)(3).

[8] Id., § 20-91(A)(6).

[9] Id., § 20-91(A)(9)(a).

[10] Id.

[11] Vardell v. Vardell, 225 Va. 351, 302 S.E.2d 41 (1983).

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