Do I really have to be separated for a year to get a Virginia divorce?

Posted on Oct 18, 2021 by Katie Carter


A year can seem like a really long time, especially if you’re trapped in a bad marriage. An entire year before you can leave it behind you and move forward probably doesn’t feel ideal. But does it really take that long? Are there any exceptions?

There are a couple of exceptions, if truth be told. I can think of two. Let me explain.

Adultery qualifies you for an immediate divorce.

If you use (his) adultery as your grounds, and you’re able to prove it (like, with a corroborating witness, the whole shebang), technically that’s grounds for an immediate divorce.

Unfortunately, though, it’s virtually impossible to REALLY get a trial date before a year has passed anyway. In fact, in most of the courts here locally, backups from the court closures during COVID (I say during COVID as though it has ended, when it most certainly hasn’t – it’s just that the courts aren’t closed) are still causing problems. It’s often not possible to get a court date before next summer, at the earliest.

And, even if you COULD get a court date, most attorneys wouldn’t recommend that you set a trial for divorce before a year is up. Why? Because if, for whatever reason, the judge is unconvinced by your evidence or unwilling to grant you your divorce using adultery grounds, you wouldn’t be able to use different grounds in the alternative.

As a practical matter, most attorneys would want to be able to use no fault grounds (which are based off of your period of separation) if they couldn’t prove their fault based grounds to the satisfaction of the judge.

In non legal jargon, that means that we want to be able to say “if not adultery, then no fault” and at least get you divorced when you walk out of that courtroom. Otherwise, if you don’t convince the judge and you haven’t been separated long enough, you’ll have to go away unsuccessful and try again. That’s a delay and an expense that no client wants to incur – and a liability that no attorney wants to risk. It would take really ironclad evidence (not to mention an uncharacteristically light docket in the local circuit court) in order to make this happen.

Six Month Separation

A more likely scenario is a divorce based on a six month separation, which you can qualify for if you meet two criteria: (1) you do not have minor children, and (2) you have a signed separation agreement.

If you have minor children, you don’t qualify. By ‘minor children’, I mean children born or adopted by the parties. You could have minor children, as in, children from a different relationship, or grown children, but neither of those would count here.

You’d also need a signed separation agreement. If you can’t reach an agreement, are using fault based grounds, or need to litigate any part of your divorce, you won’t qualify for this ‘fast track’ to divorce.

In most cases, it’ll take a bit more than six months – you’ll have to be separated for the full six months before you can file, and then it’ll take the court some time to process your divorce. All told, you’re probably looking at 7-10 months before all is said and done.

But, really, for most practical purposes, having a separation agreement feels pretty much like being divorced.

What if I can’t allege adultery, and I don’t qualify for a six month separation?

I am sorry to say, but, in all other cases, you’ll have to separate for a full year before you can finalize your divorce.

That doesn’t mean it’s a full year you have to wait while nothing is happening. Even after you separate but before a year has passed, there are things that can be happening. You could be negotiating your separation agreement, for one.

You can file for a divorce as soon as your grounds exist, so, if you’re using fault based grounds, you can FILE for divorce (though not finalize) right away. If he has cheated, abandoned you, deserted you, been convicted of a felony, etc., you can file as soon as these conditions exist.

Filing has a lot of advantages, but, specifically, it gets you into court so that you can have a pendente lite hearing, where you’d get temporary child and spousal support established, and you can conduct discovery, where you’d figure out what assets and liabilities exist to be divided.

Just because you have to separate for a year, in most cases, before you can finalize your divorce does not mean that you have to sit around for a year twiddling your thumbs. In most cases, that’s not the way it works at all. Ideally, by the time 365 days have passed, you’ll already have a signed agreement and you’ll be ready to move forward with your uncontested divorce. In fact, you may find that a separation agreement is good enough, in terms of your ability to move on – to find a new place to live, to find a new normal in terms of a parenting plan, and to even, in some cases, start dating (though technically I should tell you that it’s still adultery, because you’re married until you’re divorced).

To get more information, a good place to start would be to download a copy of one of our books, or attend an upcoming divorce seminar for Virginia women. The more you know, the better position you’ll be in to make big decisions about how to move your case forward.

For more information or to schedule a consultation with an attorney, give our office a call at 757-425-5200.