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.

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.

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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.

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References

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Is There a Desertion Divorce Law in Mississippi?

Mississippi law permits spouses to obtain a divorce based on desertion, but only under certain circumstances. If your spouse leaves you without your consent, you may feel deserted, but to obtain a divorce based on his desertion, you must be able to prove your spouse’s behavior was "willful, continued and obstinate."

Filing for Divorce in Virginia With Adultery & Abandonment

When spouses decide to end their marriage in Virginia, they can file for no-fault or fault divorce. A fault divorce means that one spouse committed some type of marital misconduct leading to the end of the marriage. Two grounds for a fault divorce are adultery and abandonment. Not only does such misconduct give spouses the right to divorce, it is also considered when a court divides marital property or determines whether a spouse is eligible for alimony.

The Cooling-Off Period Before a Divorce in Virginia

Virginia recognizes both fault and no-fault grounds for divorce. If the fault ground of adultery is proven, the court may dissolve your marriage immediately. However, the law requires parties to be separated for a length of time before a no-fault divorce will be granted. This "cooling off" period generally requires parties to stop living together; the length of the required separation will vary based on whether the couple has entered into a separation agreement and has any minor children.

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