Virginia is restrictive when it comes to divorce, just because of the waiting period required before you can even file for a no fault divorce. Here in the Commonwealth, you have to be separated for ONE year before you can finalize a divorce using the fault based grounds of cruelty, apprehension of bodily hurt, desertion, abandonment and felony conviction; similarly, to use no fault grounds, you must have been separated for a year before you can either file or finalize.
Technically – though not practically, so don’t get too excited – you can get an ‘immediate’ divorce if you allege and prove adultery, but this doesn’t happen in real life.
If you (1) don’t have children, and (2) have a signed separation agreement, you can file and finalize your divorce after just six months of separation. But that’s as generous as we get here and, in any case, you must meet BOTH of this criteria. If you have minor children from your marriage OR you aren’t able to get a signed separation agreement (or both, obviously), you’ll have to wait a year, too.
The main difference between fault and no fault – because, as we’ve seen, you still have to be separated for a year before you can finalize – is that, if you allege fault, you can FILE before you’ve been separated for a year. You still can’t finalize your divorce until a year has passed, but you can FILE, which gets you into court, usually for the sake of having a pendente lite hearing and/or conducting discovery.
If you’ve already been separated for a year, well, then – now what?
It’s a good question! If you’ve already been separated for a year, you can file on either fault or no fault grounds. Most people ultimately get divorced on no fault grounds (in Virginia and elsewhere) not because they don’t have fault based grounds, but because it’s generally not worth it to litigate over grounds.
I always ask, “Is the juice worth the squeeze?” and what I mean by that is pretty simple. If you’re going to spend MORE on an attorney, are you going to get more of the assets to justify the extra expenditure? In most cases, the answer is no, but it’s always a good idea to talk to an attorney just to get a gut check before you make decisions – like hiring a private investigator to help prove his adultery – that can be costly (and not necessarily move your case forward or net you more in equitable distribution).
This isn’t easy, or particularly intuitive, information. So, unless you’re going to go to law school (which, incidentally, I don’t recommend – though my gig these days is pretty good, I admit), you’re going to want to make sure you take the time to get up to date, Virginia-specific information from a credible source. It may seem like it’s not too big of a deal, but I often find that the choices women make at the beginning of the divorce process are the ones that set the tone. You can start a divorce like an atomic bomb or you can start it more amicably, gently, and, ideally, protective of yourselves, the assets you’ve generated, and, most importantly, any children you share in common.
For more information, visit our website at hoflaw.com or register for an upcoming divorce seminar!