DIVORCE

Here are the grounds for divorce in Virginia:

• Separation/No-Fault Divorce: This is the more common approach and does not require proving marital misconduct. To obtain a no-fault divorce, you must live separate and apart from your spouse, without cohabitation, with the intent for the separation to be permanent. The required continuous separation periods are:
  • One year: If you and your spouse have minor children.
  • Six months: If you have no minor children and you have entered into a signed Separation Agreement that resolves all issues arising from the marriage.
• Fault-Based Divorce: This pathway requires the filing spouse to prove that the other spouse committed a specific marital wrong. A divorce can be granted immediately on fault grounds without a waiting period of separation, though the legal process still takes time. The recognized fault grounds are:
  • Adultery: This is defined as a voluntary act of sexual intercourse between a married person and someone other than their spouse and adultery is between man and a woman. Sexual acts outside of the marital relationship could qualify as sodomy, which is also a fault grounds for divorce. It is important to note that proving adultery requires a high standard of evidence, which must be clear and convincing. Adultery is also technically a misdemeanor crime in Virginia, and because of this, a spouse accused of adultery can plead the Fifth and refuse to answer questions about it, in some circumstances. There are many other factors to consider before filing a divorce based on adultery.
  • Cruelty: Proof of acts of physical violence or conduct that endangers the life, safety, or health of the innocent spouse. Mental cruelty could also qualify as grounds for divorce under particular circumstances.
  • Willful Desertion or Abandonment: When one spouse breaks off cohabitation with the intent to desert the other, against their will, for at least one year. This can also include “constructive desertion” if one spouse’s intolerable conduct forces the other to leave.
  • Felony Conviction: If a spouse has been convicted of a felony after the marriage, sentenced to confinement for more than one year, is still confined, and cohabitation has not resumed after the innocent spouse learned of the confinement.

Proving fault-based grounds is significantly more demanding, as all grounds for divorce in Virginia must be corroborated with outside evidence or testimony from another witness, not just your own testimony.

A separation agreement is a legally binding contract between a married couple who agree to live apart. In this document, they stipulate how their property and debts will be divided, and it typically also resolves other critical issues such as child custody and visitation, child support, and spousal support. This agreement is sometimes also referred to as a Property Settlement Agreement.

The importance of a separation agreement stems from several key reasons:

• Shorter No-Fault Divorce Period: For a no-fault divorce, having a signed separation agreement is essential if you wish to qualify for the shorter six-month separation period. This shorter period is only available if you have no minor children together and you have already entered into such an agreement that resolves all issues. Without this agreement, even if you have no minor children, the required separation period for a no-fault divorce is one year.
• Facilitating an Uncontested Divorce: A comprehensive separation agreement that resolves all issues—including custody, support, and property division—can lead to an uncontested divorce. An uncontested divorce is typically less expensive and less time-consuming than a contested divorce. If you and your spouse cannot reach mutual agreement on these issues, the court will make the final decisions.

In essence, a separation agreement serves as a blueprint for your post-divorce life, allowing you and your spouse to make critical decisions collaboratively rather than leaving them entirely to the court, and it can significantly expedite the divorce process under Virginia law.

Establishing a precise date of separation is far from a mere formality; it is a critical point in time that directly impacts the most significant aspects of your divorce.

Its importance stems from its role in several key areas:

• Property Division (Marital vs. Separate Property): The date of separation serves as a crucial cutoff for property and debt classification. It determines when the marital partnership legally ends.
• Divorce Timeline: For a divorce in Virginia, a period of separation is required, and the legal clock for this waiting period begins ticking on the date of separation. Virginia does not grant divorces without this separation period. The required duration depends on your circumstances.
• Spousal Support Considerations: The duration of the marriage is a key factor judges consider when determining whether to award spousal support, as well as its amount and duration. The date of separation effectively stops the clock on the length of the marriage for these purposes, and shifting this date, even by months, could influence a court’s decision on support.

In essence, the date of separation is the bright line that defines the end of the financial and legal partnership of your marriage, directly impacting how long you must wait for your divorce and how your assets and debts will be divided.

The legal date of separation is established when two key requirements are met simultaneously:

1. Intent: At least one spouse forms a clear and definite intention to permanently end the marriage. This cannot be vague; it must be a firm decision and communicated to the other spouse.
2. Physical Separation: The parties begin living separate and apart, ceasing all marital cohabitation.

How this date is formally established depends on whether you and your spouse agree:

• Agreement Between the Parties: The simplest and most effective way is for both spouses to agree on the specific date of separation. If this agreed-upon date is stipulated in legal filings, a court will almost always accept it without requiring additional evidence.
• Evidence Presented in Court: If you and your spouse disagree on the date, a court will determine it based on the evidence presented. This evidence must demonstrate both the intent to end the marriage and the physical act of separating.

Think of establishing the date of separation like setting the “finish line” in a race; until that line is clearly defined and crossed, all preceding efforts are part of the main event, but once it’s established, you transition to the next phase.

Under certain conditions, you could be legally separated while still living in the same house in Virginia. This arrangement is commonly known as separate and apart under the same roof.

While it might seem counterintuitive, Virginia law recognizes that couples can cease to function as husband and wife even if they continue to share a residence. The core concept is not about the physical address, but rather the termination of the marital relationship or “cohabitation”. To be legally separated under the same roof, at least one spouse must have formed the clear intent to permanently end the marriage, and this intent must be accompanied by actions that are inconsistent with a marital partnership. Essentially, you must stop living the life of a married couple and instead function as roommates sharing a living space.

For a Virginia court to recognize your in-home separation, you must fundamentally dismantle the marital enterprise. The court will look for a consistent pattern of behavior demonstrating a true and complete separation.

The simplest and easiest answer is no, you cannot date during separation in Virginia, as doing so comes with significant legal risks and is generally not advisable until your divorce is finalized.

Virginia requires establishing a date of separation and maintaining a period of separation for no-fault divorce. Until this period is complete and your divorce is final, you remain legally married, and your actions can have profound legal consequences.

Here’s why dating during this period is so risky:

• Adultery Accusations: If you engage in intimate relations with someone other than your spouse while separated, you are committing adultery. Even if you planned a no-fault divorce, your spouse can file a counterclaim for a fault-based divorce based on adultery if they discover this. Proving adultery can involve evidence like photos, texts, or private investigator testimony. Even if there’s no intimacy, mere dating can create suspicion, leading to increased tension and distrust, making settlement more difficult.
• Spousal Support (Alimony): If you are the spouse seeking spousal support, committing adultery is particularly detrimental. Virginia courts consider instances of adultery, and a spouse proven to have committed adultery can be legally barred from receiving spousal support, unless denying it would result in a “manifest injustice”. This applies even if the adultery occurred after separation but before the divorce is finalized, provided it’s been less than one year since the separation. If spousal support is a significant concern for you, it is strongly advised not to date at all during your separation.
• Property Division: While Virginia follows equitable distribution (fair, not necessarily equal), adultery can influence how marital assets are divided, potentially leading the court to award less marital property to the spouse who committed it. Furthermore, if you spend marital resources on a new partner, this is known as dissipation or waste of marital assets, and your spouse can claim you are taking more than your fair share.
• Child Custody and Visitation: In cases involving minor children, dating during separation introduces additional complications. Virginia courts make custody decisions based on the best interests of the child. Introducing new romantic partners to your children can be viewed negatively by the court, potentially reflecting poorly on your parenting fitness or your ability to assess your children’s emotional needs. If you are seeking primary physical custody, a dating relationship could negatively affect your chances. Some courts may even impose restrictions on overnight guests unrelated to the child or require parental approval before new partners are introduced.
• Emotional and Practical Complications: Beyond the legal ramifications, dating can significantly escalate conflict. A spouse who feels betrayed may become less willing to negotiate reasonably, leading to a contested divorce rather than a cooperative one. This can prolong the process, increase legal fees, and cause more distress for everyone, including children. Your online presence (social media, dating apps) can easily be found and used as evidence against you.

Given these substantial risks, it’s often like walking through a minefield; while it might seem tempting to move on, the potential for blowing up your legal case and increasing emotional turmoil is very real, making extreme caution and legal advice absolutely essential.