What Every Virginia Woman Should Know About Divorce
Military Personnel: If a member of the U. Being stationed or residing in the state includes members of the armed forces stationed upon a ship having its home port in Virginia or at an air, naval or military base located within the state. Any member of the U. If there are no children from the marriage, the couple must be separated for at least six months and have a written property settlement agreement before filing.
If there are children from the marriage, the couple must be separated a minimum of one year before filing. The grounds for an absolute divorce in Virginia are as follows: 1. Adultery, or for sodomy or buggery when committed outside the marriage, and the parties have not voluntarily cohabitated after knowledge of the adultery, sodomy or buggery and it did not occur more than five years before institution of the suit; 2.
Felony conviction after the date of marriage with at least one year of imprisonment, and cohabitation has not been resumed after knowledge of this confinement; 3. Cruelty, causing reasonable apprehension of bodily harm, or willful desertion or abandonment, and it has been a period of one year from the date of the act before the application by the innocent party is filed; and 4.
Voluntary separation for six months with a written separation agreement and no children either natural or adopted ; otherwise, separation for at least one year. When a marriage is alleged to be void or voidable for the following reasons or by virtue of fraud or duress, either party may file a suit for annulment; upon proof of the nullity of the marriage, it will be decreed void by a decree of annulment.
All bigamous marriages are prohibited by law and shall be absolutely void, without any decree of divorce, or other legal process. If either party to a marriage lacked capacity to consent to the marriage at the time of the solemnization, due to mental incapacity or infirmity, the marriage is voidable. It may be declared void by a decree of divorce or nullity. The following situations render a marriage voidable and may be voided with entry of a decree of annulment when one party files a complaint and provides proof of the complaint: One party is naturally or incurably impotent at the time of entering into the marriage contract; Prior to the marriage, either party, without the knowledge of the other, had been convicted of a felony; At the time of the marriage, the wife, without the knowledge of the husband, was pregnant by some person other than the husband; The husband, without the knowledge of the wife, had fathered a child born to a woman other than the wife within ten months after the date of the solemnization of the marriage; or Prior to the marriage, either party had been, without knowledge of the other, a prostitute.
No annulment for a marriage alleged to be void or voidable because either or both parties were under the age of 18; because either party lacked the mental capacity to consent to marriage; or by virtue of fraud or duress, shall be decreed if it appears that the party applying for the annulment has cohabitated with the other after knowledge of the facts giving rise to what otherwise would have been grounds for annulment; and, in no event shall any decree be entered if the parties had been married for two or more years prior to attempting to file suit for annulment.
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Any such marriage, civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable. Affirmance: When the validity of any marriage shall be denied or doubted by either of the parties, the other party may institute a suit for affimance of the marriage.
Upon proof of the marriage's validity, it shall be decreed valid and this decree shall be conclusive upon all persons concerned. To file for affirmance, one of the parties must be domiciled in, is and has been an actual bona fide resident of Virginia at the time of bringing suit. Virginia is an equitable distribution state. The court may divide, transfer or order the division or transfer, or both, of jointly owned marital property, or any part thereof.
The court shall also have the authority to apportion and order the payment of the debts of the parties, or either of them, that are incurred prior to the dissolution of the marriage. Generally, the court shall have no authority to order the division or transfer of separate property or marital property which is not jointly owned, with the exception of some percentages of pensions, profit-sharing, deferred compensation plans or retirement benefits as described and allowed by statute.
Upon decreeing the dissolution of a marriage or a divorce from the bond of matrimony, the court, upon request of either party, shall determine the legal title as between the parties, and the ownership and value of all property, real or personal, tangible or intangible, of the parties. The court will also determine which property is separate property, which is marital property, and which is part separate and part marital.
Statute defines the following as separate property: All property, real and personal, acquired by either party before the marriage; all property acquired during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party; All property acquired during the marriage in exchange for or from the proceeds of sale of separate property, provided that it is maintained as separate property; The part of any property classified as separate pursuant to the applicable statutes regarding partial marital and partial separate property; Income received from separate property during the marriage, if not attributable to the personal effort of either party; and The increase in value of separate property during the marriage, unless marital property or the personal efforts of either party have significantly contributed to the increases and then only to the extent of the increases in value attributable to such contributions.
Marital property is defined by statute as follows: All property titled in the names of both parties, whether as joint tenants, tenants by the entirety or otherwise, except when separate property is re-titled in the joint names of the parties, if the property is retraceable and was not a gift, the re-titled property shall retain its original classification; The part of any property classified as marital pursuant to the applicable statutes regarding partial marital and partial separate property; All other property acquired by each party during the marriage which is not defined as separate property; and All property including that portion of pensions, profit-sharing, deferred compensation or retirement plans of whatever nature, acquired by either spouse during the marriage, and before separation of the parties, is presumed to be marital property in the absence of satisfactory evidence otherwise.
The court shall classify property as part marital property and part separate property as follows: In the case of income received from separate property during the marriage, such income shall be marital property only to the extent it is attributable to all the personal efforts of either party; In the case of the increase in value of separate property during the marriage, such increase in value shall be marital property only to the extent that marital property or the personal efforts of either party have contributed to such increases, provided that any such personal efforts must be significant and result in substantial appreciation of the separate property.
The court, in determining whether to award support and maintenance for a spouse, shall consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery; conviction, sentencing and confinement for a felony; and cruelty, apprehension of bodily harm or willful abandonment. Te party receiving the support has the duty to notify the paying party immediately of the remarriage. Failure to do so will entitle the paying party to restitution.
In Virginia. No-Fault grounds for divorce: No-Fault: 1 living separate and apart without cohabitation for 1 year; or 2 living separate and apart without cohabitation for 6 months if there are no minor children and the spouses have entered into a separation agreement. There are three principal players involved in your marriage that will also be involved in your divorce: you, your spouse, and the Commonwealth.
You cannot simply break up, saddle your charger, and ride off into the sunset. Among other legal considerations, you have to give the Commonwealth an acceptable reason why you should be allowed to break up. The reason is known as the ground for your divorce. Over the years each state has enacted legislation that governs acceptable grounds.
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In any case where the parties have entered into a separation agreement and there are no minor children either born of the parties, born of either party and adopted by the other or adopted by both parties, a divorce may be decreed on application if and when the husband and wife have lived separately and apart without cohabitation and without interruption for six months. A plea of res adjudicata or of recrimination with respect to any other provision of this section shall not be a bar to either party obtaining a divorce on this ground; nor shall it be a bar that either party has been adjudged insane, either before or after such separation has commenced, but at the expiration of one year or six months, whichever is applicable, from the commencement of such separation, the grounds for divorce shall be deemed to be complete, and the committee of the insane defendant, if there be one, shall be made a party to the cause, or if there be no committee, then the court shall appoint a guardian ad litem to represent the insane defendant.
Separation agreements are specifically authorized by statute and will reduce the time required for living apart by 6 months. In addition, a spouse may waive service of process, but the waiver of service of process form must be signed in front of the clerk of the court. The testimony of either spouse must also, generally, be corroborated by a witness.
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Adultery is sexual intercourse between a married person and someone other than the spouse. In Virginia, neither cunnilingus nor fellatio, which the law defines as sodomy, is a ground for divorce and generally neither is considered adultery. The sexual intercourse must involve some penetration of the female organ by the male organ, but a "completion" of the sexual intercourse is not required.
There probably is no such thing as a pleasant adultery case; because names, dates, places, paramours, and the like have to be brought out in the open.
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If your spouse no longer cares about what you know and is open about the affair, you're lucky. You can then catch your spouse flagrante delicto, which means you have your spouse in the flagrant wrong and may not have to worry about hiring detectives. However, you may still need a detective to prove your case in court. There is still a need for a corroborative witness, such as a mutual friend or neighbor, who has no stake in the matter except telling the court what he she witnessed.
Most adultery cases are proven by circumstantial evidence, which means that you have to establish that your spouse had the disposition and opportunity to commit adultery.
Public displays of affection, such as hand-holding, kissing, and hugging, between the guilty spouse and the paramour are generally sufficient evidence to indicate an adulterous disposition. Opportunity may be proven by showing that your spouse was seen entering the paramour's apartment at 11 P. If you can only prove disposition but not opportunity, the courts may not allow your divorce because the court may reason that it is just mere speculation.
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The same is true if you only show that there was opportunity, but cannot prove disposition. When you think about it, this seems to make sense. Sometimes known as a paramour, the co-respondent is the person whom you charge as having committed adultery with your spouse. The co-respondent has the right to hire a lawyer and file an answer to your complaint.
Naming co-respondents can get sticky, particularly if your facts are incorrect. You might be damaging the reputation of an innocent person. Adulterers are not equal under the blanket of the law. In Virginia, adultery may impact custody if the adultery is proven to have harmed or impaired the children. Adultery does not necessarily affect alimony awards in Virginia.
It will, however, be a factor for consideration in awarding alimony. Generally, if you knew your spouse committed adultery but continued to live and cohabit with your spouse, then adultery cannot be used as a ground. Once you resume marital relations, after you learned of the adulterous act, the courts feel that you have forgiven, or "condoned," the act. But, if your spouse starts having affairs again, you can then sue on grounds of adultery.
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Or, if your spouse has had several affairs and you knew of and condoned only one, you may file on adultery regarding the newly discovered affairs. In Virginia, however, condonation does not necessarily bar the action for divorce; it now only a "factor for consideration. If your spouse has been convicted-not simply charged-of a crime, that is a ground for divorce in Virginia. The conviction can be for either a misdemeanor or a felony in any state, and the spouse has to serve at least 12 months of a minimum three-year sentence in a penitentiary or penal institution.
For all practical purposes, desertion and abandonment are one and the same. There are two elements that have to be present in order to constitute desertion: the willful desire or the intent to desert and the cutting off of the marital relationship. In Virginia, the abandonment has:. When your spouse packs bags, books, and toothpaste, walks out the door, moves into another apartment, and stays there, he or she is guilty of actual desertion. The spouse voluntarily leaves and has no plans to return except perhaps to pick up a forgotten belonging.
You also can be deserted even if your spouse does not leave. If your spouse's behavior is so cruel or despicable that you find yourself dialing suicide prevention, you can leave and charge your spouse with constructive desertion. Constructive desertion is basically defined as one person leaving the relationship-not necessarily the home. The following are some cases of marital misconduct that have been applied to constructive desertion:.
Willful refusal of sex, without just cause and nonperformance of other marital duties as to practically destroy the home life. The denial of sex alone does not constitute desertion. The spouse also has to stop carrying out the mutual responsibilities of the marital relationship. Conduct that endangers a spouse's life, safety, health, and even self-respect although an isolated assault or two will not necessarily constitute cruelty unless the act was particularly severe and atrocious.
One spouse's failure to move if, for example, the other gets a job transfer. The exception is if one spouse's choice of domicile is unsafe or unsuitable for the other. Your spouse has left you, spent six months chasing butterflies, and suddenly wakes up one morning and decides that you are the one after all. In good faith, your spouse shows up at your doorstep and begs you to forgive and forget. In Virginia, if you say yes, then all is well.
But if you say no and refuse to even see or listen to your spouse, then, strange but true, your spouse could sue you for desertion. The waiting period would start all over again beginning with the time of your refusal. Keep in mind that "good faith" is the key. If, for example, your husband deserted you and then tried to return only after realizing what the high costs of his alimony and legal fees would be, his desire to return would not necessarily be considered "good faith".