In Virginia, you are separated when either you or your husband makes the decision to end the marriage. It happens in a moment, at the time when, in your mind, you know that the marriage is over and that it is beyond repair. You don’t have to tell the other spouse, and, in Virginia at least, you don’t have to file for legal separation with the court. You do, however, have to stop cohabitating.
What is cohabitation?
Cohabitation is a fancy word that means “living together as husband and wife.” At the point that you decide to separate from your husband, you have to stop cohabitating, or living together the way you have while you were married. So, even if you don’t actually tell him that you’re starting a separation, he’s probably going to notice pretty quickly.
When you stop cohabitating, you have to think about two things: (1) the way you behave when you’re alone, and (2) the way you behave when you’re out in public.
When you’re alone, you should behave as though you’re separated. This is pretty easy if you separate and immediately establish your own separate residences. It’s a little more tricky if you’re trying to live separate and apart in the same house. If that’s your plan, it means that you should each do your own shopping, prepare your own meals, clean up your own messes, sleep in separate rooms, stop wearing wedding or engagement rings, stop exchanging presents, and so on. Obviously, you should stop having sex, too, though sex is not the main determining factor here, because we’re looking at what constitutes living together as husband and wife. After all, plenty of unmarried people have lots of it, and plenty of married people get none of it. If you’re wondering whether you should or shouldn’t do something while you’re separated, ask yourself, “If we were living in completely separate physical spaces, would I do this?” If so, it may be okay. If not, definitely don’t do it. Use your best judgment.
When you’re out in public, you should behave as though you’re separated. It’s difficult to do, but you’re going to have to stop playing the happy couple when you’re around other people. It’s uncomfortable to feel like you’re airing your dirty laundry, but it’s necessary. It is no longer appropriate for you to go to church together, hold hands in public, or drive together to neighborhood association meetings. You should, as much as possible, let people know that the two of you have separated. As far as your children are concerned, though, you should maintain a united front.
In Virginia, you have to live this way for a full year before you can get a divorce, unless you have minor children AND a signed agreement. If that is the case, you can get divorced in six months. That may seem like a long time to wait after you’ve already decided that it’s over and begun to prepare yourself for the changes that this will inevitably bring, it’s really a much more user friendly process than ever before.
It used to be incredibly difficult to get a divorce. Today, there are a number of different grounds of divorce that are recognized, so it’s much easier. Not only that, but there are opportunities for women after divorce, and the stigma that used to be associated with divorce has all but disappeared. You should know that it’s okay to say that you’re unhappy, that your marriage is unfulfilling or, for whatever reason, undesirable. For every woman, the decision is heartbreaking, but sometimes the idea of staying is even more heartbreaking. That’s okay.
Depending on the type of divorce you decide to pursue, it can move along quickly and efficiently, or slowly and painstakingly. There are a lot of decisions you can make up front that will help make the process run a little more smoothly, so I’ll explain to you how the pieces all fit together. First, we’ll talk about the difference between a contested and an uncontested divorce.
Contested and Uncontested Divorces
A divorce can be contested or uncontested, fault or no fault. We’ll talk a little bit more about fault and no fault in the next section, but contested versus uncontested is a good place to start. Uncontested means that you and your husband have reached a decision regarding how the marital assets and liabilities are going to be divided, and you don’t need the court to do anything more than grant your divorce. This is the cheapest and easiest way to get divorced. In order to quality for an uncontested divorce, your divorce must be no fault.
A contested divorce means that you haven’t reached an agreement, so the court is going to need to help you divide your assets and liabilities. A divorce is automatically contested if you allege fault based grounds, because you have to prove to the court that your grounds exist. You’ll have to call witness and put on evidence in order to prove that, for example, there was adultery.
A fault based divorce must be contested, but a no fault divorce can be either contested or uncontested. In a fault based divorce, you have to prove your grounds of divorce. That’s not something that your husband can agree to. You can’t draft a separation agreement that says that he agrees that he committed adultery; you’ll have to go to court to prove it to the judge’s satisfaction. On the other hand, a no fault divorce can be contested, meaning that even though there are not fault based grounds you still can’t reach a written agreement, or uncontested, meaning that there are not fault based grounds and you were able to reach an agreement. Let’s talk more about fault and no fault.
What does it mean to get a fault or a no fault divorce?
Fault
A fault based divorce means that your reason for getting divorced is because of the fault of one spouse. In Virginia, we recognize fault based divorce for the following offenses:
• Adultery, Sodomy, and Buggery
The sex based grounds include any sexual act performed outside of your marriage. The legal definition of adultery is when a married person has sex with a person other than his or her spouse. Sodomy expands upon that definition to include oral and anal sex, and buggery includes sex with animals as well. (It’s gross, I know. But it’s in the statutes, and so I tell you. And, no, I have not had that case.)
Pay attention here: notice that I said “sex.” Adultery really is all about the physical act of having some kind of sexual intercourse. Going out to dinner, hugging, kissing, exchanging cards, or sending provocative pictures does not count as sex. Though these things may be good evidence to support your claim of adultery, taken alone, none of these things are enough to prove adultery.
Adultery entitles you to an immediate divorce, which means you can file for divorce right away and, theoretically at least, schedule your trial as soon as you’ve followed whatever procedural requirements that court you’re in has established. (Some courts, for example, require mediation or judicial settlement conferences prior to scheduling a trial. Talk to an attorney to find out what your local circuit court requires.) In most cases, though, we don’t file for divorce until the one year separation period is up. Why? Well, because we have to PROVE adultery to the satisfaction of the judge. If we are unable to prove it when your trial date comes, and you haven’t been separated for a year, we can’t use different grounds for divorce. Our case would be dismissed, and we would have to come back after the year of separation was up. That way, you risk having to pay for two separate trials, which would definitely be bad.
• Felony Conviction
If either you or your husband was convicted of a felony for which you could serve a year or more in prison, you can use that as a grounds for divorce.
• Cruelty, Apprehension of Bodily Hurt, Desertion, Abandonment
These grounds are all lumped together because they are very closely related. These grounds include physical and emotional abuse, as well as when one spouse completely leaves the marriage relationship without providing adequate support to the other. Desertion and abandonment come into play in two basic scenarios: when one party leaves the marital residence, and when one party leaves the other without any kind of financial support.
If you allege any of the fault based grounds, you file your complaint for divorce and get into court quickly. This can be advantageous, because it allows you to have what is called a “pendente lite” hearing. Pendente lite is Latin for “while the litigation is pending,” and at the hearing you can ask for all sorts of things, including temporary child and spousal support, temporary custody, exclusive possession of the home, certain kinds of injunctive relief (preventing him from wasting marital assets, for example), restraining orders (preventing him from coming to your work or home and harassing or interfering with you), and even restricting overnight guests of the opposite sex who may be present while your child is in his father’s care. This can be helpful, because you can’t actually get divorced until your one year of separation is up, but, if you can’t reach an agreement, it could take even longer. If it does, it will be a serious relief to you to know that you at least have some support in place to help keep the family running in the mean time.
Filing for divorce on fault grounds has its own host of advantages and disadvantages, but you should definitely talk to an attorney before you take any hasty action. Even if you are able to prove your fault based grounds, it may not be worth it. Like anything, you’ll have to analyze whether the juice is worth the squeeze, so it’s a good idea to talk to an attorney ahead of time to come up with a custom-designed case strategy for your unique situation.
No Fault
No fault doesn’t mean that you don’t have fault based grounds. You may very well have fault based grounds. On the other hand, though, you don’t have to have fault based grounds to file for divorce anymore. You can file for divorce for any reason, good or bad, or no reason at all. (Of course, I don’t think for a second that anyone does this; I say it just to make a point.) It just means that you have made a strategic decision to move forward without considering fault. It means that, whatever your reason is for no longer wanting to be married to your husband, you are entitled to get a divorce. He doesn’t have to want it, either. So, part of the good news is that you are not trapped in a marriage that is unsatisfying, unfulfilling, or undesirable in any other way.
Since you’re not alleging fault grounds, you can’t file, get into court quickly, and have a pendente lite hearing. In fact, you can’t file at all until your separation period is up. Because of that, people who are seeking a no fault divorce don’t have pendente lite hearings. There would really be no point, since by the time you file you’re ready to actually get divorced. You can get a date for an uncontested divorce hearing much more easily than a pendente lite hearing!
The choices you should be making now
It’s a good idea, if you’re facing a divorce, to talk to an attorney as soon as possible. You’ll want to start making decisions early on about how to proceed, and it’s a good idea to keep in mind that the less you fight, the more you’ll have left over at the end of your divorce. Your goal should be to give yourself the best, freshest new start possible, and you should structure your divorce to help you accomplish those goals. Don’t be a pushover, of course, but find a happy medium between signing your rights away and fighting to the death. You want to maximize the amount of money that is leftover for you to start over.
For more information, or to talk to an experienced Virginia divorce and custody attorney about your unique situation, please give our office a call at (757) 425-5200.