Given the percentage of marriages that end in divorce, anyone could be affected in some way by a separation or divorce. Dissolving a marriage often involves property rights and financial matters, and can raise complicated legal problems, especially when children are involved. The Family Law Section of the Virginia State Bar prepared this information to provide the public with basic answers to some of the fundamental legal questions concerning divorce and separation in Virginia. We hope that this information will help people understand some of the complications that can arise in this area of the law. Virginia law recognizes two types of divorce: divorce from bed and board a mensa et thoro and a divorce from the bond of matrimony a vinculo matrimonii.
Any person granted a divorce from bed and board may ask the court to "merge" the decree into a divorce from the bond of matrimony after at least one year has passed from the date the parties originally separated.
The law requires that "grounds" valid reasons for divorce prescribed by law for divorce must exist and be proven to the court even if the parties agree that a marriage should end.
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These grounds are briefly described below. Desertion or abandonment requires both the breaking off of cohabitation and an intent to desert in the mind of the offender. A mere separation by mutual consent will not be considered desertion.
Mar 18, Under Virginia law, you are either married or divorced, so even though you may be separated from your spouse physically, you are still married in the eyes of the law. With that being said, no one can prevent you from dating during your separation. It is not a crime to do so, and the court is not going to order you not to date. However, dating during your separation poses some . Jun 10, In Virginia, you don't have to file for a legal separation. In fact, it's a lot easier than that. To be separated, one of you (only one!) has to form the decision in your mind that the marriage is over. Then, combined with that decision, you have to stop cohabitating. Sep 11, In Virginia, the date of separation marks the beginning of the divorce countdown. According to the Code of Virginia (if you are a frequent reader of these writings, you know how we love to quote the Code of Virginia), you can file for divorce one year after separation (if you have kids) or six months (if you have no kids)/5(78).
Further, if one spouse leaves because the other has committed acts that legally amount to cruelty, then the spouse who leaves is not guilty of desertion. In fact, the spouse who leaves may be awarded a divorce on the ground of cruelty or constructive desertion.
What is Separation? "Separation" in Virginia, also known as "living apart," occurs when a couple stops living together as husband and wife. When this happens, the couple is separated, even if they have not yet signed a Separation Agreement. Also, unlike many other states, Virginia courts do not grant "Legal . Dating during divorce will affect your life in the long run. Legal Reasons to Wait to Date. In Virginia, you are married under the law until the divorce is final. That means that where fault is recognized in a divorce case, dating while your divorce is pending could be considered proof of adultery. Jan 31, In Virginia, both parties in a divorce are required to make a full disclosure of their assets and debts that existed at the date of separation. This includes both marital and non-marital property. If there are disagreements about what constitutes a marital vs. non-marital asset, the burden of proof is on the party that made the claim.
If desertion grounds exist, a suit for a divorce from bed and board may be filed with the court immediately after the separation. If the desertion continues for more than one year from the date the parties originally separated, then the desertion is sufficient to constitute a ground for divorce from the bond of matrimony.
Cruelty authorizing divorce requires acts that tend to cause bodily harm and render the spouses living together unsafe. Mental cruelty alone is not normally a ground for divorce in Virginia.
However, if the conduct is such that it affects and endangers the mental or physical health of the divorce-seeking spouse, it may be sufficient to establish grounds for divorce. Normally, however, rude words alone will not suffice.
Cruelty constitutes the basis for a divorce from bed and board and can be filed immediately after the parties separate. After one year has elapsed from the time the act s of cruelty were committed, grounds will exist for a divorce from the bond of matrimony.
If the parties have entered into a Property Settlement or Separation Agreement and there are no minor children, the time period is reduced from one year to six months. Although separation provides a "faultless" ground for divorce, fault may still be an issue when spousal support alimony is being sought or can be a factor in determining the division of marital property.
Proving adultery is very fact-specific. The evidence must be strict, satisfactory, and conclusive that the other spouse did in fact engage in sexual relations with another person. While there must be some corroboration of the testimony of a spouse to prove adultery, "eyewitness" testimony as to the adulterous acts is not required.
In fact, most cases of adultery are proven without eyewitness testimony by using other evidence of the circumstances involved. Sodomy is a sexual act, other than intercourse, such as oral or anal sex. To be grounds for divorce, it must be committed with someone outside the marriage. Buggery is bestiality or a sexual act against nature.
The standard of proof for these grounds is the same as that for adultery.
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Suspicion or speculation is not enough. The "guilty" spouse has a number of "defenses" to the charge of adultery, sodomy, or buggery.
Can you date if you are legally separated in Virginia? Of course you can date if you are living apart under a separation agreement or decree of separate maintenance. But there could be consequences in the divorce case. If your spouse wants to, he can use your choice to date before your marriage is dissolved to obtain a fault divorce. Am I Allowed to Date While Separated in Virginia? | Holcomb Law, P.C. Am I Allowed to Date While Separated? So, you and your spouse have made the decision to get divorced. You're both on the same page and agree that the marriage can't be saved. Virginia law allows for no-fault divorce on the grounds of (a) living "separate and apart" for one year or (b) living separate and apart for six months with a separation agreement in place and no minor children. Unlike many states, Virginia does not have a procedure for obtaining a status of "legal separation" in these no-fault cases.
If the guilty spouse can successfully establish any one of these defenses, then a divorce will not be awarded on these grounds. These are very fact specific and should be reviewed with an attorney.
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If a spouse has been convicted of a felony, sentenced to confinement for more than one year, and is in fact confined, then the other party has grounds for a divorce from the bond of matrimony as long as he or she does not resume cohabitation with the guilty spouse after knowledge of the confinement. Unlike a divorce which dissolves a valid marriage, an annulment is a legal decree that a marriage is void.
Annulments are granted only in limited circumstances such as a marriage entered into because of fraud, duress, or coercion. If you negotiate a settlement agreement, be sure to talk to your attorney about including a clause that each spouse has the right to date others during the separation. That could stop your spouse from turning it against you.
Technically, if your dating leads to an affair, you've committed the crime of adultery. It's an open question whether that law is constitutional, but you probably could live your life perfectly well without being the test case on that.
Berkeley's law school, Teo Spengler is up on education. She splits her home time between San Francisco and France.
A perpetual student and frequent teacher, she is also a writer and world traveler. By: Teo Spengler.
In fact, probably most of the people who separate do eventually divorce. You can negotiate a separation agreement through a number of different methods, including mediation, collaboration, with an attorney, or on your own, without an attorney or mediator.
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Stay calm, and keep your goal in mind. You may be ready to talk an attorney about your options, and to make sure that you have all the information you need to make decisions during your separation. For more information about setting up a consultation, give our office a call atand to check out our divorce seminar, visit MonthlyDivorceSeminars.
So, how do I get separated? What is cohabitation?
Virginia separation laws and dating
How long do I need to be separated? Why do I have to be separated? Does adultery even make a difference? What if we decide to reconcile?
Date of Separation Really Matters.