Everyone wants a divorce that is over quickly. In fact, in initial consultations, that’s usually one of the first things people say to me. They want to know whether I think it can happen sooner, how long people usually spend negotiating, and whether there are any ways around the requirement of one year of separation (or, of course, six months if you have a signed agreement AND have no minor children).
It’s not exactly the most fun you’ll have in your life. Like filing your taxes, divorce is a process you want to be over before you start. You’ve probably dreaded it for awhile already, if you’re like most people. And you probably have the “rip it off like a band aid” mentality, too.
Really, though, it normally takes about a year to get divorced, regardless of your situation, and it can take much longer. We like to joke about it a little (just to lessen the tension, not because we actually think divorce is a laughing matter) and say that the length of time your divorce will take is directly proportional to how difficult your husband is. We’re aiming for levity, of course, but we’re also saying something that you know, too: we don’t actually know your husband at all. It’s really difficult for an attorney to actually estimate the length of time a case will take when we only know one side.
Remember: attorneys take on a case after only an initial consultation. So, at the very, very best, we only know one side, and only have one party to use to gauge the level of difficulty of a particular case. Sometimes we can get a good idea of how complicated (or not) a case might be, but other times it’s more difficult.
Sometimes, women come in and ask me about an immediate divorce. They read online somewhere that they could get an immediate divorce in certain situations, and they want to know how they, too, can get one. It sounds too good to be true, right? Well, in reality, that’s because it is.
There’s only one situation where you can get an immediate divorce, and that’s where you can allege (and prove) adultery.
In Virginia, to get divorced, you have to have grounds. You can use fault based grounds or, alternatively, no fault grounds. If you allege fault based grounds, you can use any of the following: adultery, sodomy, buggery, cruelty, apprehension of bodily hurt, desertion, abandonment, and felony conviction. No fault grounds, on the other hand, don’t mean that you absolutely don’t have fault based grounds; it just means that you plan to move forward without using those grounds. When you pursue a no fault divorce, it just means that you plan to use your period of separation as your grounds instead. In Virginia, like we already briefly touched on, you have to be separated for a year before you can move forward with a no fault divorce, or six months if you have a signed separation agreement and no minor children.
Still, as far as fault based divorces go, only adultery (and sodomy and buggery, because they’re all lumped together under the adultery heading) qualifies you for a so-called immediate divorce. All of the fault based grounds allow you to FILE for divorce immediately, but only adultery allows you to move forward with the divorce proceedings immediately.
So, if I can allege and prove adultery, I can get an immediate divorce?
Yes. Well, technically, you can get an immediate divorce, anyway. In reality, it usually doesn’t work like that, because it’s actually fairly complicated.
What is adultery, and what do I need to know or do to allege adultery in my divorce complaint?
Adultery is, simply put, when a married person voluntarily has sex with a person who is not his or her spouse. Adultery can include oral, anal, and vaginal sex, so it’s pretty broadly interpreted. Still, at the end of the day, it’s all about sex. There’s no adultery if all you can prove was that there was hand holding, dating, kissing, or even an admitted romantic relationship. It’s really all about proving that there was sexual intercourse of some kind.
In order to allege adultery, you don’t need to be able to prove it right away. You just need to have a reasonable belief that your grounds exist. Normally, when we file a complaint based on adultery, we allege the information that we have. Ideally, we’ll use the date (on or about) when the adultery occurred, the location, and the initials of the alleged paramour, if we have them.
That’s enough to get into court, but you’ll need to do a lot more to prove adultery to the satisfaction of the judge.
How do you prove adultery?
Adultery, because it’s still a crime in Virginia and potentially carries significant criminal and civil penalties, is the hardest to prove of all the fault based grounds for divorce. To prove adultery, you have to do so by “clear and convincing evidence.” It’s a fairly difficult standard to meet, and you’ll have to provide a corroborating witness, too.
What’s a corroborating witness?
A corroborating witness is a person who can testify that your grounds exist. Usually, in an adultery case, we’ll use someone like a private investigator.
We don’t have to actually catch them, on camera or video, having sex, but we do have to prove that, in all likelihood, sex happened. We can normally do this by having a private investigator tail your husband. The private investigator can watch him as he goes about his business, goes into a hotel or his (or his paramour’s) home, and then watch all the exits. If he can catch your husband emerging the next morning, you’ve probably got a pretty good case.
Still, as you can probably imagine, it’s pretty expensive to hire a private investigator. There are often a lot of hours involved, trying to catch him at something inappropriate. It’s difficult to know, ahead of time, exactly how hard it will be, or how much of the private investigator’s time will be wrapped up in trying to gather evidence.
It sounds easy! My husband cheated. Can I get an immediate divorce?
Okay, so, here’s the thing. Even though, if you can prove adultery, you do qualify for an immediate divorce, most attorneys don’t push these things forward quite so quickly. Why? Well, there’s some risk involved. Imagine this… You file for divorce, using adultery as your grounds, and you schedule a trial as quickly as you can.
You may not be able to schedule it all that quickly anyway. Most courts have a lot of procedural requirements (roadblocks, essentially) in place to slow you down and encourage you and your husband to settle, rather than leaving it up to a judge to decide. You may have to have a judicial settlement conference, attend mediation, and prepare pretrial documents first–which can take time. In addition, like we’ve already discussed, you may have to wait a little while before your private investigator has enough evidence to move your case forward.
Besides that, most courts are pretty backed up. In Virginia Beach, you won’t be able to even get a trial date for 8 or 9 months; it’s just not possible to schedule sooner.
Even though you qualify for an immediate divorce, that doesn’t mean you can jump ahead in line. The cases that were filed first and already had hearings or trials scheduled are going to be handled before the judge gets to yours.
What happens if you can’t prove adultery? Really, this is the biggest problem. You can gather all the proof in the world, but ultimately it’s up to the judge to determine whether your evidence, exhibits, and testimony is sufficiently clear and convincing. If you can’t convince him, then what?
That’s a major problem. If the judge isn’t convinced by your testimony, you don’t have grounds and you can’t get divorced.
If you waited until your one year of separation was up before your trial, if you weren’t able to prove adultery, you could use no fault grounds instead. If you try to move forward for that immediate divorce and then you can’t prove it, you’re out of luck entirely. That means your divorce will be denied, your case dismissed, and you’re back at square one.
Not only are you not divorced, but everything you’ve done so far is wasted. You’ll have to file for divorce all over again, using the same or different grounds, and you’ll start again from the beginning. All the time and money you’ve invested in your adultery case is gone; you’ll pay from the beginning all over again.
As an attorney, this is a situation to avoid at all costs. Most attorneys, regardless of how good the proof is, would want to wait until the year was up to have that final divorce trial. Why? Well, imagine how unhappy a client would be, after taking all that time and spending all that money to get up to trial, only to be unsuccessful in even getting a divorce. And to return to the beginning of the process, despite all the money spent already, and have virtually nothing done. It’s pretty much the worst possible scenario–for attorney and, especially, for the client.
Does that mean I can’t use my adultery grounds?
No. You definitely can, if that’s something you want to do. I definitely recommend that you talk to an attorney in advance, though, to make a decision about whether it’s worth it to pursue in your unique case. There’s more to discuss than whether you want to file for divorce immediately or whether you’ll wait the whole year; ultimately, the real discussion is whether the juice is worth the squeeze. Will pursuing adultery ensure that your divorce moves forward the way you hope? Will you get what you need to start over? Will you spend too much on attorney’s fees, and then wind up with a larger share of a smaller pie? Or will it prove to be the thing that makes your case that much better? Because a judge CAN award one side a disproportionate amount of the assets because of their negative nonmonetary contribution to the marriage. (That’s lawyer speak for “if he’s bad, it’s possible you could get more”.)
For more information about adultery and to schedule a consultation with one of our attorneys, give our office a call at (757) 425-5200.