This July 1 will mark a big change for Virginia law – and we want you to be among the first to hear about it. Actually, it’s important that you not just hear about it, but you actually understand what the law is trying to do.
Virginia has always recognized both a divorce from bed and board (a mensa et thoro) and a divorce from the bonds of matrimony (a vinculo matrimonii); in fact, if you’ve been divorced, you might have even seen both referenced in some of your pleadings.
Originally – as in, before July 1, 2026 – a divorce from bed and board was reserved for cases where fault-based divorce was alleged. Specifically, Virginia Code 20-95 said, “A divorce from bed and board may be decreed for cruelty, reasonable apprehension of bodily hurt, willful desertion or abandonment.”
Additionally, if you did not allege fault-based grounds, you had to wait until you had been separated for the full statutory period (one year, or six months if you don’t have any minor children born to or adopted by the parties during the marriage) before you could even file. Without fault-based grounds, you couldn’t even get into court at all until the one year had elapsed.
A divorce from bed and board is not – and will not be, even after July 1 – a full and final divorce. It does not mean that you are legally single or that you can remarry. Because of that, and because of the strict circumstances associated with a divorce from bed and board, it wasn’t something that was used that often in regular divorce litigation.
What will change beginning July 1?
Beginning on July 1, you won’t have to use only fault-based grounds to get a divorce from bed and board. Anyone can – immediately after separation – file for a divorce from bed and board, entitling them to relief from the court.
The big difference here is not so much the divorce from bed and board – it’s still not a full and final divorce, meaning that you’re not single and legally free – but that you won’t have to wait for a full year before you can even file.
Having access to the courts is critical. For one thing, it means you can get started with the process, including having a pendente lite hearing (critical for temporary resolution of issues like child custody and child and spousal support, as well as exclusive possession and some temporary restraining orders) and conducting formal discovery.
What won’t change after July 1?
You’ll still have to be separated for a full year before you can have a divorce trial and get a divorce from the bonds of matrimony.
You will still have access to both fault-based and no fault-based grounds for divorce.
The process will remain the same, still requiring filing, service, pendente lite, discovery, and other procedural steps (including specific steps that may be required by the local rules in your area’s circuit court, like proffers or judicial settlement conferences).
So, separation doesn’t matter anymore?
No – separation still matters! You can’t finalize your divorce before one year has elapsed (unless you meet the requirements for a divorce after a six month separation); the same legal separation requirements still exist. The only difference is that you don’t have to satisfy them BEFORE you file for divorce anymore.
So, I can get divorced immediately?
No. You can FILE immediately. Your divorce will still take one year to resolve, unless you are able to reach an agreement and don’t have minor children. In all likelihood, your case will take more than a year, though the total amount of time can vary.
Why did the lawmakers do this?
Traditionally, a divorce from bed and board existed to protect a spouse whose partner’s behavior made continuing to live together unsafe or unreasonable. Some of this is coming hot on the heels of the Fairfax murder case, out of DC, though I’m sure much of this was in the works long before that case started garnering headlines.
Though separation under the same roof is critically necessary, it’s also a potentially dangerous time, especially for women. This was one potential path forward for victims of domestic violence and coercive control (though I don’t think the court used those words to describe it way back when).
Now, the court is going one step further – allowing people in these circumstances to file immediately in any circumstances, regardless of fault. This gives people access to the courts earlier than ever, no matter what has brought the couple to this point.
Strategically, this can be important for a number of reasons. Probably most importantly, it allows you access to the courts to determine temporary spousal and child support so that you can continue to meet your own and your children’s needs while the divorce is pending. It can also help you legally establish your date of separation, something that – sometimes -makes annoying waves. It can also help you begin the process sooner, so that you can begin the discovery process and get things resolved more quickly than you otherwise would have been able to (if you’d had to wait a full year before you could even file). In the right circumstances, this is important leverage.
I know it can seem confusing, but, really, this is about having options. Though a divorce from bed and board won’t get you fully and finally divorced, it’s a great first step that opens up the courthouse to litigants who would otherwise have had to wait a really long time. This means that you can get that train on the tracks, establish temporary support, and more well in advance.
Will it keep women safer? I, for one, certainly hope so – and appreciate the intention behind the law. Exactly what it will look like in practice will remain to be seen, but I’m excited to see it.
What will change next year? Who knows! I’m always surprised by the changes to the law, and this is no exception. I hear, too, that a taskforce has been engaged to look into the fault and no fault divorce system in Virginia, so I wonder if fault-based divorce is next. Will we go to an entirely no fault state? Some states are! Would that be better? That, I think, is a more difficult thing to analyze.
For more information, to request a consultation, or to register for our upcoming divorce seminar, give us a call at 757-425-5200.