Sometimes, divorce comes about gradually, over time, as people outgrow relationships that once served them. In other cases, though, there was one triggering event that set events in motion, so to speak.
These cases are the most difficult, I think, because it wasn’t a gradual thing that you could adjust to over time. It was a sudden shift and, in many cases, the triggering event was traumatic. Maybe you never even seriously considered divorce before now when something so awful happened that you just know you have no other choice. Or maybe you’re not quite sure yet, but you’re suddenly wondering what your other options are. Maybe you’ll stay, maybe you’ll go, but recent events have called it into question.
There’s not any huge rush to make a decision. You are in the driver’s seat. Keep in mind, too, that asking for information related to divorce is not like opening Pandora’s Box. You don’t have to go through with divorce. But you will make sure that, by asking questions and being sure that you understand how the law operates in your state, you are in the most empowered position possible, no matter what you ultimately decide.
There are no bright line rules about what does and does not constitute a divorce-able offense. It is entirely up to you to decide whether and how far you’ll go to work to keep a marriage alive in light of whatever it is that your husband has done. I purposely don’t speculate here, because I don’t want to characterize some infraction as worthy of divorce versus another. It is entirely your decision and you can ultimately divorce him for any reason anyway, so whether it’s a speeding ticket or premeditated murder, you are well within your rights to call it quits.
Let’s talk about criminal charges and convictions (and divorce).
In Virginia, it is grounds for divorce if your husband is convicted of a felony for which he could serve a year or more in prison.
This comes from Virginia Code § (this little squiggly means ‘section’) 20-91(3), and it reads as follows:
“Where either of the parties subsequent to the marriage has been convicted of a felony, sentenced to confinement for more than one year and confined for such felony subsequent to such conviction, and cohabitation has not been resumed after knowledge of such confinement (in which case no pardon granted to the party so sentenced shall restore such party to his conjugal rights);”.
A couple key points here:
- It is the conviction, not the initial charge, that triggers your ability to use these grounds. He must be convicted.
- He must be sentenced to serve a jail or prison sentence for one year (or more).
- You must not forgive this conviction by resuming cohabitation with him AFTER you knew that he was going to prison for a year (or more).
What do you mean – cohabitation?
This is a good question. Cohabitation is a fancy legal term we use to describe living together as husband and wife. If he is convicted and you start living together again – eating together, sleeping together, etc – you risk legally forgiving him. If you legally forgive him, you can’t use felony conviction as your grounds for divorce.
You can still get divorced, of course – you can get divorced for any reason, good or bad, or no reason at all – but you would have to use no fault grounds instead.
Is it more difficult to divorce someone who is in prison?
Yes! It is exponentially more difficult to divorce someone who is in prison. Usually, they have to have a Guardian ad litem appointed – like a child or a disabled person – for the case to move forward, which can cause delays and increase expense.
It’s definitely worth talking to an attorney if this is you so that you can come up with a plan that makes sense in your specific situation.
What if he wasn’t convicted of a felony? What are my divorce options in that case?
You’re not stuck! Even if you don’t qualify to use these specific fault based grounds, you may have other fault based grounds you can use (adultery, cruelty, apprehension of bodily hurt, desertion, or abandonment) or choose, instead, to use no fault grounds.
Keep in mind that using no fault doesn’t mean there’s no fault; many people choose to pursue a divorce on no fault grounds to keep things more amicable, to help them run more quickly, and/or to reduce the expense associated with litigated divorce. (Fault-based divorces are always litigated, because you have to meet the required burden of proof; no-fault divorces, on the other hand, can be uncontested and stay out of court.)
What does a no-fault divorce look like?
A no-fault divorce can be litigated or negotiated, depending on the parties involved. In cases where the parties can reach an agreement about how all of the assets, liabilities, and responsibilities are going to be divided, you could go through with an uncontested no-fault divorce, which – in most cases – doesn’t even require that you go to court. You just negotiate everything in writing in a signed separation agreement and then finalize by submitting uncontested divorce paperwork.
Of course, just because you don’t have fault-based grounds (or if you do but you’ve chosen not to use them for whatever reason) doesn’t necessarily mean you can reach an agreement about how all the assets, liabilities, and responsibilities will be divided. Hey, that’s fair – agreement is very hard in almost every situation, and borderline impossible in others.
If you can’t reach an agreement, you’ll litigate, which means that you’ll go to court and let the judge decide.
That’s it. Those are the options.
It doesn’t matter what the offense is, necessarily – whether it’s a misdemeanor or a felony, whether he is accused or convicted. If you are ready to go, you can go. It is entirely up to you.
For more information, to schedule a consultation, or to get a copy of our divorce book for Virginia women, give us a call at 757-425-5200.