Divorce after an open marriage

Posted on Aug 3, 2016 by Katie Carter

Hey, I’m not here to judge. If I’ve learned anything from all my years working as a divorce and custody attorney, it’s that families come in all shapes and sizes, and marriages don’t necessarily conform to convention. If your family is a little on the unusual side, that’s okay. In fact, anything is okay. You don’t have to do things the same way as everyone else if that’s not what works for you. I certainly won’t judge, and you can pretty much guarantee that I’ve heard worse.

If you’ve had an open marriage, you’re not alone. In fact, these days, I see more and more people who have chosen to participate in an open marriage. For whatever reason, it’s what works for them. Or, at least, it worked at one point. Admittedly, I don’t see too many people who are happy with their marriages. It’s a professional limitation.

If you’ve had an open marriage and you’re thinking about divorce, you’re in the right place.

Is divorce different after an open marriage than after a traditional marriage?

No, not really. As far as it relates to the most essential facts, divorce is divorce, and the facts of the marriage don’t change it all that much. You can have a fault based divorce, determined by a judge, or a no fault divorce, determined by a separation agreement.

A fault based divorce is always litigated, meaning that you have to go to court to get everything resolved. Though you can reach an agreement relating to how some (or even all) of your assets and liabilities will be divided between the two of you, you will, at the very least, have to prove to the judge that your fault based grounds exist.

What are fault based grounds?

In Virginia, there are a number of fault based grounds, including adultery, sodomy, buggery, cruelty, apprehension of bodily hurt, desertion, abandonment, and felony conviction.

Because fault based grounds carry with them various criminal and civil penalties, you have to go to court and offer evidence that will prove, to the satisfaction of the judge, that your fault based grounds exist. Some are more difficult to prove than others. The ins and outs of fault based divorce are a little bit beyond the scope of this article, but if you want to read more about the grounds for fault based divorce, click here.

Can I use adultery, sodomy, or buggery as my grounds if my husband and I have had an open marriage?

No, probably not. This probably doesn’t come as a surprise to you, since the basis of an open marriage is that you’re not really bound by sexual fidelity to each other.

What is adultery?

In Virginia, adultery is defined as when a married person voluntarily has sexual intercourse (which can be oral, anal, or vaginal) with a person who is not his or her spouse. As far as it relates to the law, as long as he has had sex outside of the marriage, he has committed adultery. On this basis, you could probably file for divorce using adultery as your grounds.

If you’ve committed adultery, though, he certainly has a defense. Much like a clinically insane person has a defense to a crime, a person accused of adultery has a number of potential defenses at his disposal. For our purposes, the most relevant defense to an accusation of adultery is recrimination. Basically, if he has committed adultery and you’ve committed adultery, too, the affairs cancel each other out, and neither of you can use adultery as your grounds.

It makes sense. You can’t allege something against him that you’ve done yourself.

Even if you hadn’t committed adultery, you’d have to prove that your husband had to the satisfaction of the judge, and adultery is the most difficult of the fault based divorces to prove. It requires clear and convincing evidence, and a corroborating witness (usually, a private investigator or someone like that). Needless to say, it’s generally difficult, time consuming, and expensive.

What are the advantages to filing a fault based divorce?

There often aren’t big advantages to filing on fault. In most cases, it’s certainly not like you’re going to get a disproportionate award of the assets just because of his fault (especially if he can offer any kind of convincing evidence regarding your decision to have an open marriage). It’s not a golden ticket. Far from it, in fact.

What can you expect? Well, if you file on fault, you’ll be able to schedule a pendente lite hearing (that’s Latin for “while the litigation is pending”) which will allow you to set up temporary child and spousal support and custody, among other things. If you’ve been cut off from access to the marital funds, it may be that you choose to go the litigated divorce route in order to have a pendente lite hearing. Likewise, if you’ve tried to negotiate an agreement and failed, you may choose a litigated divorce, too–because there’s no other way to move things forward if he won’t negotiate with you.

Otherwise, though, it’s likely that a litigated divorce will just cost more and take longer.

If I’ve been in an open marriage, can I use other fault based grounds?

Yes. Nothing restricts your ability to use any of the other fault based grounds, since they don’t relate to sexual fidelity. If he is emotionally, physically, or sexually abusive, has cut you off from access to the marital money, abandoned the marriage, or was convicted of a felony for which he could serve a year or more in jail, you have grounds for divorce anyway.

What about a no fault divorce?

You can use a no fault divorce at any time, regardless of the facts of your specific case. Whether you don’t have fault based grounds, or you do and you decide not to use them, you can get a divorce using no fault grounds instead.

No fault grounds are based on a period of separation. In Virginia, in order to get a no fault divorce, you have to be separated for a year, or just six months if you meet two criteria: (1) you don’t have any minor children, and (2) you have a signed separation agreement. Want to learn more about separation agreements? Click here.

If you elect to move forward with a no fault divorce, you’ll either get divorced with a negotiated and signed separation agreement or, if you can’t agree, you’ll go to court and litigate how everything will be divided. This is a little bit different than a fault based divorce. If you allege fault grounds, you’ll, at the very least, have to go to court to prove to the judge that your grounds exist. Potentially, you could also litigate how everything will be divided. If, on the other hand, you allege no fault, but you aren’t able to reach an agreement, you won’t have to litigate your grounds, but you might have to litigate over how your assets and liabilities will be divided.
Ideally, you’ll be able to negotiate a signed separation agreement.
In most cases, a signed separation agreement is the goal–whether yours was an open marriage or not.
For more information, or to schedule an appointment with one of our licensed and experienced Virginia divorce attorneys, give our office a call at (757) 425-5200.