One of your first considerations after deciding that you
want an absolute divorce (sometimes referred to as a divorce a vinculo matrimony) from your spouse is
whether you have a ground for divorce.
“Grounds” for divorce are “reasons” for divorce that have been approved
by the legislature as sufficient to permit termination of the marriage. In Virginia, divorces are categorized as
having been based upon Fault or No-Fault.
No-Fault Divorce
A no-fault divorce is a voluntary separation which means
that the spouses mutually agree to live separate and apart. There are two different categories, with
differing minimum periods of separation,
in order to satisfy a no-fault divorce statute:
·
If the parties have no minor children and have
resolved all of their divorce related issues in a written separation agreement,
then they need only have lived separate and apart without cohabitation, and
with the intention of the separation being permanent for six months before they
are able to file for divorce on this basis.
·
If the parties have minor children or do not
have a written separation agreement, they must have lived separate and apart
without cohabitation during which one of the parties intended the separation to
be permanent for at least one year.
Fault Divorce
A fault divorce involves meeting one of several grounds for
divorce in order for the court to consider granting the divorce. The fault-based grounds for divorce include:
·
Adultery [there is no waiting period for filing
a divorce based upon adultery];
·
Conviction of a crime - [In order for a crime to
constitute a ground for divorce the spouse must have committed a felony in any
state and have been ordered to serve more than twelve months in a penitentiary
or penal institution. Cohabitation must
not resume after receiving knowledge of the spouse’s confinement or the grounds
for divorce are lost.]
·
Cruelty [there is a one year waiting period for
filing a divorce based on cruelty;
·
Desertion - [Desertion, or abandonment, has
three requirements that must be met.
First, the desertion must have continued for twelve uninterrupted
months. Second, it must be willful and
malicious. Third, it must be beyond any
reasonable expectation of reconciliation.
There are two types of desertion.
Actual desertion involves the spouse voluntarily leaving and having no
plans to return to the marital residence.
Constructive desertion involves one person leaving the relationship, not
necessarily the home. An example of
constructive desertion is ceasing to perform the household duties and “shutting
out” the other spouse or making the continuation of the relationship intolerable:
·
Insanity - [the insanity ground for divorce
requires the spouse to be judged permanently and incurably insane and confined
in an institution or hospital for a minimum of three years before filing]; and
Bigamy [there is no waiting
period for filing for divorce based upon bigamy].
