How long do I Have to be Separated before I Can Get a Divorce in Virginia? The quick answer is that it depends but most likely you will have to be separated for one year. There are a few exceptions discussed below.
Virginia, like many states and commonwealths, requires that you be separated for a period of time before you and your spouse can get a divorce. In Virginia, you must have grounds to obtain an absolute divorce, also called a divorce from the bonds of matrimony or a divorce a vinculo matrimonii. The grounds for a divorce from the bonds of matrimony are set out in Virginia Code Ann. § 20-91. There are grounds that we call “fault based” grounds, such as adultery and cruelty, and there are also grounds that we call “no fault” grounds, which include a separation without cohabitation and without interruption for a certain period of time.
Generally, the required separation period is one year. Virginia Code Ann. § 20-91(A)(9) allows parties to obtain a divorce after the parties have lived separate and apart without cohabitation and without interruption for more than one year. This is the no fault grounds discussed above. It is important to note that you cannot file for divorce on these grounds until the grounds exist. That means that you cannot file for a divorce until AFTER you have already been separated for a year. If your divorce is contentious you will likely not be able to actually obtain a divorce for at least a few months until after you file, and perhaps longer. If your divorce is contentious, you will need to schedule a long enough trial to cover all the issues that are in contention, and that means that you will have to schedule the trial at a date when the court has enough time to hear all the issues. Many circuit courts in the Commonwealth of Virginia have congested dockets, like Loudoun County Circuit Court in Leesburg and Fairfax County Circuit Court, and it will take some time before the Court will be able to hear your divorce case. You and your divorce lawyer will also likely want to schedule the hearing enough in advance to allow you to take advantage of discovery tools, such as interrogatories, requests for production of documents, requests for admissions, and depositions.
There are some exceptions that allow a divorce to be obtained before one year has elapsed. One of the exceptions is adultery. The grounds of adultery is set out in Virginia Code Ann. § 20-91(A)(1) and does not have a time restriction. This means you can file for divorce on this grounds immediately. As a practical matter, you will still likely not schedule your trial until after one year has elapsed from separation. Adultery is not easy to prove with the specificity required under Virginia law. If you wait until after a year has elapsed from separation, you will be able to obtain a divorce based on a one year separation if you fail to meet the burden of proving adultery. The advantage is that you will be in court, can perform discovery, and will be able to schedule to final hearing around the time of one year or close to it instead of having to wait to even file until after one year has elapsed. Another exception that exists to the one year requirement is the exception under § 20-91(A)(9)(a). The exception allows you to obtain a divorce after six months only if (1) you and your spouse have entered into a settlement agreement resolving the marital issues, AND (2) there are no minor children born of the parties, born of one party and adopted by the other party, or adopted by both parties. Again, you cannot actually file until after six months have passed, but your divorce can be wrapped up in a short period of time after filing because all of your issues have been resolved by the settlement agreement and you will not need to schedule a trial.
Other grounds exist for a divorce from the bonds of matrimony, including cruelty and abandonment. These grounds also require a year to have passed from the separation before a final divorce can be granted. Both of these are also grounds for a divorce from bed and board, or a divorce a mensa et thoro. A divorce from bed and board is not a final divorce. The divorce exists, in part, to allow some people that do not believe in or object to divorces from the bonds of matrimony to obtain a kind of non-final divorce. As a practical matter, many parties will file for a divorce from bed and board when grounds exist so that the case can be filed in Circuit Court. That way discovery can begin and the case can be set for trial at a date after the parties have been separated for a year without having to wait until then to even file. Another benefit to being in court before a year has elapsed is that the parties can ask the court for temporary relief on issues such as child custody, child support, spousal support, exclusive use of the marital residence, and the freezing of certain marital assets. The grounds for a divorce from bed and board are set out in § 20-95 and the power of the court to make temporary order is set out in § 20-103.
If you are separated from your spouse and considering a divorce, you should talk to an attorney about your options. Even if you do not have grounds, it is possible to resolve all of your marital issues before you have been separated for a year. This is often a much less financially and emotionally taxing alternative to litigation. Also, you may discover that you have grounds to get into Court and did not realize it. It is also possible to get into the Circuit Court or the Juvenile & Domestic Relations District Court on the issues of child custody, child support, and spousal support without filing for divorce. You should know your options, and at Beckman Schmalzle Georgelas & Ross, PLC, we can discuss them all with you.