How Long Do You Have to Be Separated to Get a Divorce in Virginia?

by Mary Jane Freeman

    If your marriage is no longer working, you have the option of filing for legal separation or divorce. Unfortunately, in Virginia, these options are not described in such a straightforward manner. Instead, legal separation is known as "divorce from bed and board," while an actual divorce is called a "divorce from the bond of matrimony." Considering the similarity in terminology, it's easy to get the two confused. To ensure you meet the requirements for a divorce, particularly the length of separation required, it's important to know and understand the differences between the two.

    Divorce From Bed and Board

    To obtain a legal separation in Virginia -- divorce from bed and board -- you must allege and prove one of two grounds: willful desertion and abandonment or cruelty. To be successful on the willful desertion ground, you must prove that your spouse intentionally left the marital home and planned not to return. There is no set time limit for how long the desertion must last; however, it is presumed to last until the deserter attempts to reconcile. If spouses end cohabitation by mutual consent, there is no desertion. To separate on the ground of cruelty, the behavior must rise to the level of bodily harm or cause reasonable apprehension of harm, affecting the mental or physical health of the victim spouse.

    Divorce From Bond of Matrimony

    To obtain a divorce in Virginia, you must file for divorce from the bond of matrimony. Spouses are not required to file for separation first, although a divorce from bed and board may be converted into a full divorce, if desired. To do so, spouses must first wait a full year from the date their grounds for separation -- desertion or cruelty -- arose. However, if a spouse chooses to file for divorce without first separating, she simply needs to cite one of the grounds available.

    Grounds

    Virginia recognizes no-fault and fault-based grounds for divorce from the bond of matrimony, each with a required one-year waiting or separation period before the divorce may become final. In addition to desertion and cruelty, a spouse may allege the fault grounds of adultery or felony conviction with a sentence of more than one year in prison. Since citing fault-based grounds for divorce requires proving the other spouse's misconduct, the filing spouse may elect the no-fault option instead, which requires only a showing that both spouses lived apart for one year without cohabitation or interruption.

    Exceptions to Waiting Period

    The one-year requirement may be reduced in limited circumstances. In no-fault divorces, if the couple has no minor children and enters into a written separation agreement, the divorce may be granted after six months of living apart without cohabitation and interruption. If the divorce is fault-based, a divorce may be granted six months from when the behavior giving rise to the divorce took place. Some judges may permit the separation period to begin even if spouses remain under the same roof; however, this is not common.

    About the Author

    In addition to writing on legal topics, Mary Jane Freeman also works as a policy analyst and legal consultant.

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