As far as divorce is concerned, Virginia is a sort of tough state. We’re somewhat old fashioned in that we allow for both fault-based and no-fault based divorce; we also require a much longer period of legal separation compared to many other states nationwide.
In order to finalize a divorce action in Virginia, you must be separated for one year. You are separated when (1) at least one of you forms the intent to end the marriage, and (2) you stop cohabitating, or living together as husband and wife. This is something that, for many people, can be done while still living in the same house.
It’s a question both of how you’re living inside of the home – more like roommates, virtually strangers, than partners – and how you’re behaving outside of the home. You should be representing yourself to family and friends as a separated couple, instead of representing to others that all is well.
Though we’ve done away with the requirement to have a corroborating witness (and thank goodness for that), you’ll still have to testify under oath to your period of separation. And while you probably could, theoretically, lie – you’re still under penalty of perjury and all of that. It’s really … not wise. I’m not saying that everything about your period of separation must be perfect and, in some ways, the rules are about as clear as mud, but you should be making a very good faith effort at separation. (If you admit to your lawyer that you’re lying, she will refuse to put forth that information to the court, too, so really just better all around to tell the truth, don’t you think? That’s always been my motto.)
So, you’ll have to be separated for a year. If yours is a no fault divorce, you’ll have to wait the full year before you can even FILE for divorce – because your grounds must exist in order to file. If yours is a fault based divorce, you could file as soon as those grounds exist (like, if you use adultery, you can file when you find out that he has cheated), but you’ll likely still have to wait a year before you can finalize.
Unless…
There are two notable exceptions to the “one year to finalize divorce” in Virginia rule. Let’s discuss.
Six month separation
You can get a divorce in Virginia after just six months of separation if you meet two criteria: (1) there were no minor children born or adopted by the parties during the marriage, and (2) you have a signed separation agreement already in place.
The no minor children thing is easy. You can have minor children, but their other parent must not be the opposing party; you can also have grown children, even if the other parent is the opposing party. But if you have birthed or adopted children during your marriage who are still minors, you will have to wait one year before you finalize.
The separation agreement thing is easy, too. Either you have one or you don’t and, if you don’t, you can’t get a divorce after six months of separation.
In reality, though, even when you meet the conditions, it takes longer than six months – because you can’t even FILE for divorce until the six months is up. It’s not like you can submit your paperwork in advance and the judge will review once you make it to the six month mark; no, you file on the first day after the sixth month, and then it’ll take a few weeks (to, sometimes, a few months, depending on how backed up the court’s docket is) to finalize. Of course, the same goes for divorce after a one year separation; it’s not like on the 366th day the judge grants the divorce.
But, still, if you meet those criteria you could file for divorce a full six months sooner than anyone else, and expect your divorce to be granted well before the one year mark. So, yay for those who qualify! (Because, really, is there anything much worse than being stuck in a marriage after one or both parties have decided it’s over?)
And the other option…
Adultery – technically – qualifies you for an immediate divorce.
I saved this for last, but not because it’s the best. Technically, you could get an immediate divorce after proving adultery. The reality, though, is that this virtually never (if, indeed, ever) happens. I’ve never seen an immediate divorce, and certainly not one where adultery was alleged.
In most cases, attorneys would wait until the one year had lapsed anyway before setting a divorce trial – and, procedurally, this may be a necessity anyway, since there are often requirements (like discovery, settlement conferences, and proffers) that must take place before the final trial date can even be set by the attorneys.
So, why would we wait, anyway? Good question. Even if we had ticked all the boxes – discovery, settlement conference, proffers, pre trial motions, etc – we would still be up against the fact that, if adultery is NOT proven to a clear and convincing standard (according to whomever was assigned to preside over your case as the judge), your case could be entirely dismissed.
If your hearing were set before one year had elapsed, your attorney could not ask for divorce based on any – literally *any* – other grounds, because everything else requires one year of separation. That would be a terrible position to find yourself in, having gotten all the way to a final divorce trial and not being able to ask for divorce on any other grounds. Your case would be dismissed and, despite all the time, energy, and money you had spent on your case to bring it to that point, you’d have to start over from 0.
From a practical standpoint, not a position any reputable lawyer wants to find herself in. It’s also not a position you want to be in, of course, but I can understand pushing for an immediate divorce upon finding that it’s a possibility. It’s just … not really something that happens.
Otherwise, though, you will have to be separated for one year before your divorce is finalized. I know that’s probably not what you want to hear, but, for most people, it goes pretty quickly. There’s a lot of negotiating to do and, then, once it’s done, most people settle into a new normal that almost feels like divorce. By the time they actually get a divorce, it’s usually anticlimactic.
It might not feel that way now, but … that’s usually the way it is. But there’s virtually nothing you can do to get around the 1 year separation requirement.
For more information, to request a copy of one of our four popular divorce and custody books for Virginia women going through divorce and/or child custody, visit our website at hoflaw.com or give us a call at 757-425-5200.