Virginia recognizes both “fault” and “no-fault” divorces. The most common way our clients get divorced is through the no-fault process. In order to file for a no-fault divorce in Virginia, a spouse must generally be able to prove that the parties have lived separate and apart, continuously, and without cohabitation for one year. Many clients are surprised to hear that they must be separated for so long just to file for divorce. We don’t agree with it either, but that is what the law requires. It is also necessary for at least one of the parties to have had the intent to remain permanently separated for one year and to have communicated that intent to the other spouse.
So what does living separate and apart really mean under the law? Generally, it means that the parties must physically separate and not live together in the same household. Virginia doesn’t recognize legal separations, so the issue of separation is an issue of fact. A court will ultimately need to hear evidence that you and your spouse have been living separate from one another, and it will need to be convinced that you are no longer enjoying the benefits of marriage. It is possible for a court to grant a divorce if the parties are living under the same roof, but a spouse will need to prove that the parties were living together as essentially roommates and not as a married couple. This issue usually arises when it is not economically viable for either spouse to vacate the marital residence.
Instead of waiting one year, a person seeking a divorce in Virginia may alternatively file for a no-fault divorce after merely six months if the following are true: the parties have executed a separation agreement and they do not have any minor children together. For marriages with a shorter duration, we sometimes recommend that our clients execute a separation agreement, even when the parties don’t really have any property or debt to divide, just so they can file for divorce more quickly.
Although there is a waiting period in either no-fault divorce scenario, the good news is that your spouse cannot prevent you from obtaining a divorce if that is what you ultimately want. As long as you have a witness who can testify about certain facts, such as the date of separation, a court will grant you a divorce without the consent of the other party.