Filing for divorce can be especially challenging if it is necessary to prove that one of the spouses is at fault for the divorce. In Virginia, the statutes that govern divorce allow couples to dissolve their marriage without establishing fault. To have a no-fault divorce, the couple must prove that they lived separate and apart for one year if there are minor children, or six months if there are no minor children.
Who May File
Either spouse who is a resident of Virginia may initiate the divorce in court. The filing party must file a complaint in the circuit court where he or his spouse lives. One of the spouses must have been a Virginia resident for at least six months before filing. If the defendant is not a resident of Virginia, he may file the petition for divorce in the city or county where the plaintiff resides. Ch 6 § 20-97.
In Virginia, a no-fault divorce means one of two things: Either the couple has been living separate and apart without cohabitation for at least one year, or they have been living separate and apart without cohabitation for at least six months, if they have no minor children and have entered into a separation agreement. Va. Code Ann. § 20-91(A)(9)(a) While the couple may also have circumstances that would establish grounds for a fault divorce, it is not necessary to do so as long as they have been separated for the time the statute requires. Va. Code Ann § 20-91(A)(9)(a).Ch 6 § 20-91.
After the two parties have filed the petition for divorce, the defendant spouse has 21 days to file an answer, if he is a resident of Virginia. If this spouse lives outside Virginia, he has 60 days to file an answer if he lives in the U.S, and 90 days if he lives outside of the U.S. If he does not file a response within the required time, the court will proceed with the divorce, assuming that the process server served the papers correctly. Ch 6 § 20-99.
Even in a no-fault divorce, judges may consider the circumstances that contributed to the breakdown of the marriage when distributing assets. Factors that may be considered include adultery, a felony conviction, cruelty, abandonment or desertion. When deciding how best to divide marital property between divorcing spouses, the judge may consider the conduct of the parties during the marriage. For example, a judge may deny alimony to a spouse who has committed adultery, even when the spouse is seeking a no-fault divorce. Va. Code Ann. § 20-107.3 A2.