The murder of Cerina Fairfax – who was in the midst of a divorce in Northern Virginia at the time that her husband, a former Virginia lieutenant governor, killed her and then himself in the family home while the children were home – has made waves over the last few months, sparking renewed attention on Virginia’s laws related to separation and divorce.
In Virginia, couples must separate for one year before a divorce can be finalized, almost no matter what grounds for divorce they use. There are really only two notable exceptions, only one of which is likely to make a difference to the ultimate timeline to obtain a divorce.
Adultery = “immediate” divorce?
In Virginia, technically adultery qualifies you for an immediate divorce, but the reality is that an “immediate” divorce almost never materializes. For one thing, because it is also a crime, adultery is the most difficult of the fault-based grounds for divorce to prove – it requires proof by a “clear and convincing” standard – which makes it both difficult and time-consuming to pursue. For another, many courts’ dockets are so backed up that an “immediate” date – or even a date within the next six to eight months, especially for multiple hours for a full, contested divorce trial – may not be even the remotest possibility. It is unlikely in the extreme, ultimately, that a divorce would actually be granted before one year has elapsed.
Divorce after a six month separation
Otherwise, the only way to get a divorce before one year has elapsed, is to qualify for a divorce after a six month separation, which has two requirements: (1) negotiate a signed separation agreement, and (2) not have any minor children born to or adopted by the parties. If you don’t have an agreement or if you have kids, you won’t qualify – and you’ll have to be separated for a year before your divorce can be finalized.
Fault v. No Fault Divorce
Virginia is unique in that it allows for both fault-based and no fault-based divorce. If you allege fault-based grounds – specifically, adultery, sodomy, buggery, cruelty, apprehension of bodily hurt, desertion, or abandonment – you can FILE for divorce before your one year of separation has run. You can’t finalize your divorce until after the one year has passed – at least, not until after July 1, 2026, but more on this in a minute – but you can file. Filing is important because it gets you into court, allows you to have a pendente lite hearing, conduct discovery, and to generally have the full force of the court behind what you are asking the other party to do.
In a no fault divorce, on the other hand, you can’t file until your period of separation has been completed – because the grounds are based off of your period of separation, and you can’t file until you have grounds for divorce. You can negotiate your agreement during the period between separation and when you’ve satisfied the full one year of separation, but you won’t have the court behind you. You can’t file motions to force him to participate with the process in any meaningful way, so if he won’t engage with you or work towards negotiating an agreement, you’ll either have to use fault based grounds (if you have them) to open your case with the court or wait until your one year has run and then file.
Legal Separation/Separation Under the Same Roof
In Virginia, you have to be separated for a year, as we’ve already discussed, but that’s not a formal legal status that you have to have recognized by the court or for which you have to file any forms.
You are separated when you (1) form the intent to end the marriage, and (2) stop cohabitating, which is a fancy legal word we use to describe living together as husband and wife.
Cohabitation doesn’t just refer to where you’re living – whether under the same roof or in separate physical spaces – but that can be one part of it. No matter what you choose, you should be living as though you are legal strangers, so little more than roommates, rather than spouses.
Most people choose to live separate under the same roof for a period of time mostly because, financially, it is so expensive to maintain two separate residences, especially in the early stages of a separation and divorce, when you haven’t necessarily resolved all the other issues.
It isn’t easy, though. To be fair, even though it is almost always wildly uncomfortable for both parties, it doesn’t usually end the way the Fairfax family’s situation ended, but I am really glad that the tragedy has caught the attention of Virginia lawmakers. There is entirely too much domestic violence, post separation abuse, and coercive control in high conflict divorce cases and it’s about time we recognized the issues and took some corrective steps. I only regret that it took this long.
July 1, 2026 Changes to the Law
Beginning July 1, Virginia’s law will change to allow parties to seek an immediate divorce from bed and board. It’s called a divorce, but it’s not a full and complete legal divorce – which is called a divorce from the bond of matrimony – but it will allow spouses, on day 1, to get some basic relief, by establishing things like custody and visitation, support, and equitable distribution.
Since the law change hasn’t taken effect yet – and it will be several months still before it does – it’s impossible to say what this will look like in real life. I suspect it will be a little bit like the “immediate” divorce you can get in cases where adultery is involved; it’s not immediate at all, if only because the court’s docket is so backed up that resolution isn’t readily available on an “immediate” time frame.
Would this mean that no one lives separately under the same roof? Probably not, because – like I said – the court’s docket will severely limit the availability of these types of hearings and, unless and until they happen, couples will have the same options available to them that they do now.
Also – it’s not a full and complete divorce. That will still happen AFTER the statutory separation period has been satisfied. Will the new law make things easier – or more expensive and more difficult to access?
People today already have the opportunity to negotiate their agreements outside of court before the one year separation period has run, so it’s not like we’re without those options today. Sure, we can’t always go to court, especially if fault based grounds don’t exist, but many people can’t go to court anyway because of the sheer expense involved.
What will change? Only time will tell. I will always be sorry, though, that real, measurable change didn’t happen in time for Cerina Fairfax – and so many of the women throughout the Commonwealth (and the world) like her.
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