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  • Joseph Amonett

Virginia Fault Divorces

Most divorces we handle at Dominion Law are filed on the basis that the parties have lived separately for either six months or a year depending the circumstances, but there are other bases that exist for filing in court as well. These grounds for divorce are identified in Virginia Code Section 20-91 and include:

(1) adultery, sodomy, or buggery committed outside the marriage;

(2) a felony conviction of one party after the date of marriage where that party is sentenced to confinement for more than one year;

(3) cruelty or reasonable apprehension of bodily hurt; or

(4) willful desertion or abandonment

Adultery, sodomy, or buggery

Adultery is one of the most difficult cases to prove in the Commonwealth. This is because Virginia courts require clear and convincing evidence of the adultery, which is a higher standard of proof than in all other divorce cases. A spouse doesn’t need to catch the other “in the act”, but there must be at least circumstantial evidence that corroborates the claim. The evidence must be strict, satisfactory, and conclusive that the other spouse engage in sexual relations with another person outside of the marriage. In the context of a Virginia adultery claim, sexual relations specifically refers to sexual intercourse. Mere speculation that a spouse has had an affair is simply not enough.

Sodomy is a sexual act, other than intercourse, such as oral or anal sex, that is committed with someone outside of the marriage. Buggery is bestiality or a sexual act against nature. Both sodomy and buggery requires the same standard of proof as in an adultery claim.

One benefit to filing for a divorce on the basis of adultery is that there are no waiting requirements. An aggrieved spouse may file immediately upon discovery of the adulterous activity. However, a divorce complaint must be filed within five years of the adulterous act or else the claim is time-barred.

Felony Conviction

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 spouse may file for a divorce as long as cohabitation has not resumed with the guilty spouse after learning about the confinement.

Cruelty, reasonable apprehension of bodily hurt

Cruelty includes acts of violence and conduct that endangers the life, safety, or health of a spouse. It is usually proven with evidence of repeated behavior that makes living in the marital residence unsafe or intolerable. Words alone are never enough, but abuse language, humiliating statements, and repeated neglect may be sufficient if the conduct is such that it affects and endangers the mental or physical health of a spouse. A single act may constitute cruelty if it is so heinous as to endanger life or cause reasonable apprehension of danger in the future.

There is a one-year waiting period for filing a divorce on the basis of cruelty or bodily hurt starting from the date of the act, but an aggrieved spouse may file for a divorce from bed and board immediately pursuant to Virginia Code Section 20-95. A bed and board divorce allows a court to address all of the divorce issues without actually divorcing the parties from the bond of matrimony. If a spouse obtains a bed and board divorce, the court may later merge that divorce into a final decree of divorce once the parties are separated for a full year.

Willful desertion of abandonment

Desertion or abandonment occurs when a spouse breaks off the marital cohabitation with the intent to desert. A successful desertion or abandonment claim requires proof of a willful separation by one spouse without cause or justification and the intent to remain separate and apart for one year. Although many cases occur where a spouse physically vacates the marital residence, desertion can also occur where a spouse completely abandons his/her marital duties to such an extent that the marriage is rendered intolerable and unable to continue.

Desertion does not occur where the parties mutually agree to separate. Desertion also does not occur where one spouse leaves the marital residence to escape the cruelty of the other. This breaking off of the marital relationship may be justified and actually constitute a constructive desertion claim against the offending party. As with cruelty, there is a one-year waiting period for filing a divorce on the basis of desertion or abandonment starting from the date of the act; however, a spouse may file for a bed and board divorce immediately.

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