BY WAYNE THOMAS
Virginia recognizes both fault and no-fault grounds for divorce. If the fault ground of adultery is proven, the court may dissolve your marriage immediately. However, the law requires parties to be separated for a length of time before a no-fault divorce will be granted. This “cooling off” period generally requires parties to stop living together; the length of the required separation will vary based on whether the couple has entered into a separation agreement and has any minor children.
A divorce may be granted in Virginia after a period of voluntary separation. This is a no-fault action that will completely dissolve the marriage relationship, and is not to be confused with a “divorce from bed and board.” A divorce from bed and board is essentially a legal separation and does not terminate the marriage.
Virginia law specifies two different time frames for separation as part of a no-fault divorce. If the parties have no children and have entered into a separation agreement, the period is six months. A separation agreement is a contract regarding how matters related to property and spousal support will be dealt with during the separation period and eventual divorce, and is in lieu of the court making this determination. If the parties have children or do not reach a separation agreement, the separation period is one year.
During the separation period, it is important that you not resume cohabitation as a married couple. This includes isolated incidents of sexual relations, which may cause the period to reset. If you and your spouse continue to live in the same residence during the separation period, a judge will look to the specific facts and circumstances of the living arrangement to determine whether you and your spouse intended to separate. For practical reasons, proving intent can be tricky if you live under the same roof as your spouse. However, separation might be established if you take deliberate actions, such as moving into the garage and not attending social events as husband and wife.
As an alternative, Virginia offers traditional fault grounds for divorce. By proving certain grounds, including adultery, you can obtain a divorce without a waiting period of separation. Other fault grounds, such as abandonment, do not require a separation period, but a spouse is required to show that the desertion lasted for at least a year. If proven, the existence of marital misconduct can also affect other areas of a divorce. Specifically, fault is taken into account in both property division and spousal support determinations. For example, a judge may be convinced that the fault of one spouse justifies a higher award of property to the victim spouse or a complete denial of support to the guilty spouse.