When it comes to divorce, there are – sadly – a lot of cases that involve some form of domestic violence. When I was a newbie, that was so surprising to me. Now, not so much, but still – I end up fielding a lot of questions about what to do, what options are available, and weighing the advantages and disadvantages of different courses of action.
When it comes to divorce, you really have only two options. You can get divorced by negotiating and signing a separation agreement, or you can go to court and let the judge decide.
When divorce is contested (a fancy legal word we use to describe a case where the parties can’t reach an agreement about how to divide the assets and liabilities in the marriage), it can be either fault based or no fault based.
A no fault based divorce, whether contested or uncontested (a fancy legal word we use to describe a case where the parties were ultimately able to reach an agreement about how to divide the assets and liabilities in the marriage), is based off of having satisfied the required period of separation. In Virginia, to get a no fault divorce, you must be separated for one year (12 months), unless you meet two criteria: (1) you sign a separation agreement, and (2) you have no minor children (which can either mean that your children are grown or that you and your husband never had any children).
A fault based divorce, on the other hand, is always contested. If you allege fault based grounds, you must go to court to have your divorce granted using those grounds. (Alternatively, you could later switch to no fault, but there is no such thing as agreeing that your fault based grounds exist, and then proceeding on an uncontested fault based divorce.) Why? Well, fault based grounds carry the potential for civil penalties (and, in the case of adultery, criminal penalties, too). In order to get a divorce granted using your fault based grounds, you’ll have to prove them to the satisfaction of the judge.
Oh, and, also? With the exception of adultery, where you can get a so-called “immediate” divorce (notice the intentional use of quotation marks there, and read the article if you have questions about this), you’ll have to be separated for a year anyway. (There is no six month exception here, because, whether you have minor children or not, if you are getting a divorce on fault, it is automatically contested.)
But what does it all mean? And, in the case of cruelty and apprehension of bodily hurt, what’s the difference, anyway?
When it comes to cruelty and apprehension of bodily hurt, I think there are a couple of key takeaways.
1. To actually get a divorce granted on cruelty or apprehension of bodily hurt, you’d likely need proof of actual physical abuse – but getting the divorce granted might not be your only goal, or only reason for filing this way.
I’ve written about cruelty before, and I think it’s at least true that this would require proof of physical abuse in order to get your divorce granted using these grounds. But actually getting a divorce granted isn’t necessarily your goal in filing on fault.
You may choose to file on fault for any number of reasons, including (but not limited to) the fact that you don’t have all the information about the assets and liabilities, that he refuses to sign an agreement, that you need temporary child and/or spousal support determined, etc.
Filing on fault can start your divorce quickly, and get you into court faster than negotiating an agreement and waiting until your one year of separation is up. You MUST have grounds to file for divorce, so, sometimes, it’s just a matter of picking something that you can reasonably allege (there has to be a basis in fact – but these grounds do give us some latitude to use something other than physical violence) to get yourself into court more quickly.
You may need a pendente lite hearing, and this may be the way forward for you.
2. We often file our fault based grounds of divorce together, in the hopes of making SOMETHING stick. We can use “apprehension of bodily hurt” to file on the basis of your belief that he may harm you, or to slip in allegations of emotional, mental, verbal abuse, or other type of abuse that doesn’t qualify as prove-able physical violence.
To me, the difference between the two grounds for divorce stems from the ability to use more than physical violence. “Apprehension” of bodily hurt implies to me that threats, or other types of abuse (like emotional or mental) will get us into court, too.
Would we be able to actually prove emotional abuse to the satisfaction of the judge to get you a divorce using apprehension of bodily hurt as your grounds? I’m not sure. But I’m also not sure it matters, because we may be able to satisfy your goals (and, in many cases, we do) by filing on fault first and switching to an agreement later. In some cases, actually proving your grounds for divorce is irrelevant by the end of the case because the parties are often ultimately able to negotiate an agreement, anyway.
It’s actually fairly uncommon to have an entire divorce trial. It happens, but not super often. And, even if you DID go to trial, by the time you go, you will have been separated for a year anyway – so you could always use your no fault grounds to finalize, while you just litigate over the way the assets and liabilities will be divided.
I think it’s clear that cruelty will require serious physical violence (check out this other article I wrote about it), but apprehension of bodily hurt is a bit less clear. Still, it may be worth alleging it – if only to get yourself into court and get the ball rolling faster. Whether you ultimately have a trial or not, your grounds will likely be less important to you (since they often don’t impact how the assets and liabilities are divided under our equitable distribution statute) than how everything is ultimately divided.
The moral of the story? Use what you need to accomplish your goals. I wouldn’t shy away from using mental or emotional abuse when it comes to filing, even though I think we’d ultimately have a difficult time proving it in a final divorce trial.
And… I do think it also bears mentioning that, if you really are under an “apprehension of bodily hurt” or suffering from cruelty at the hands of your partner, a protective order can sometimes be the way to go, too. First and foremost, you need to keep yourself – and your children, if you have them – safe. All too often, domestic violence ends badly, and you should take steps to ensure your safety. Don’t take threats lightly.
For more information, or to schedule a consultation, give our office a call at 757-425-5200.