Divorce

A divorce case cannot be started and a judge cannot grant a divorce unless one of the parties has “grounds” for the divorce. There are two types of grounds for divorce:  fault grounds and no-fault grounds.

Fault Grounds.  Fault grounds include:

• Adultery
• Sodomy outside of the marriage
• Desertion
• Cruelty
• Conviction of a felony and incarceration of a year or more

No-Fault Grounds.

If a couple has no children, and they have signed an agreement resolving all issues between them, a divorce can be filed after six months of separation.  If a couple has children, or if they do not have children but have not resolved all of their issues by written agreement, a divorce case can be filed after one year of separation.

There are two types of divorces: an uncontested divorce and a contested divorce.

In an uncontested divorce, the parties have resolved all issues between themselves, usually by a written agreement, and they have valid grounds for the divorce.

In a contested divorce, the parties have one or more issues that remain unresolved, and they require a judge to resolve the issue for them.  There do not have to be fault grounds for a divorce to be contested. Very often, the grounds for a divorce will be separation for one year, but the parties need the judge to resolve one or more issues and so the divorce is contested.

ase can be filed after one year of separation.

Yes.  A divorce case cannot be filed unless one of the parties had been a resident and domiciliary of Virginia for the six months prior to the filing date.  The law on this issue is complex, and it may not be enough to simply have an address in Virginia or to establish a temporary residence here. 

There is not, unfortunately, a one-size-fits-all answer to this question. There may be situations, for instance, where you are in physical danger and must move out to protect yourself.  If you are not in physical danger, however, and you move out, your spouse may be able to accuse you of abandonment or desertion.  If you have children, and move out without the children, your spouse could claim that he or she should have primary physical custody because he or she is in the residence where the children may be more comfortable.  If you have children, and move out with the children, your spouse could claim that you are trying to take the children away from him or her. In short, moving out is an incredibly important decision that should be made, if possible, only after considering all of the implications.