• Joseph R. Amonett, Esq.

Virginia Divorce Defenses

In Virginia, simply filing a complaint for divorce does not guarantee that a court will enter a final decree of divorce ending the marriage. A spouse must still prove their claim whether it be fault or no-fault based. Defending spouses may have a number of defenses at their disposal and it is important to review them all to see if any apply in a particular situation. Below are some of the defenses that may be available in a Virginia Divorce.


Condonation


Condonation is a defense to a fault-based claim and refers to a legal act of forgiveness. It occurs where an innocent spouse acts to forgive an offending spouse for their misconduct. Acts that may constitute condonation include the resumption of marital cohabitation and having sex. This means that, for example, if one spouse has sex with someone outside of the marriage but the innocent spouse voluntarily resumes sexual relations with the offending party after finding out about the affair, then the innocent spouse may be barred from obtaining a divorce on the basis of adultery.


Connivance


Connivance is also a defense that may be raised in a fault-based divorce case. It occurs where a spouse encourages the other to engage in misconduct or he or she expressly or impliedly consents to it. For example, If a spouse gives the other permission to have a sexual relationship with another person, that party cannot later claim adultery.


Recrimination


Recrimination is another fault-based divorce defense in Virginia. This refers to a situation where both parties are actually guilty of marital misconduct. If one spouse has engaged in adultery, the “innocent” spouse cannot file a successful adultery claim if he or she has also engaged in adultery.


Justification


A court will not fault a party for leaving a dangerous relationship. If a spouse must vacate the marital residence because he or she has been subject to abuse, for example, a court will not grant the abuser a divorce on the basis of desertion or abandonment. This defense is called justification and it exists when a party is justified for leaving their spouse because of atrocious misconduct that renders the relationship intolerable.


Statute of Limitations


For adultery claims, a party must file a divorce within five years of the date that the adultery occurred. If a spouse fails to timely file a complaint for divorce, then the claim may be time-barred.


Res Judicata


Res Judicata is a defense, which asserts that a divorce cause of action has already been litigated. For example, a spouse cannot file a divorce on the basis of adultery if a court has already denied a divorce on that basis. However, this would not preclude an aggrieved spouse from later claiming adultery again if the offending spouse engages in additional acts of adultery in the future.


Lack of Jurisdiction


Virginia has a residency requirement for filing divorces. The purpose behind this requirement is to prohibit forum-shopping (i.e. trying to file for a divorce in a particular state solely to gain a legal advantage). Under Virginia Code Section 20-97, a person cannot obtain a divorce unless at least one of the parties was a resident and domiciliary of Virginia for at least six months immediately before filing a complaint for divorce. The residency requirement is satisfied provided one party has a permanent home in Virginia. The domiciliary requirement is met as long as a person intends to reside in Virginia indefinitely. A court may only enter a final decree of divorce if both the residency and domiciliary requirements are fulfilled.