There are “Fault” grounds and “No-Fault” grounds for divorce in Virginia.
No-Fault Divorce
A Court can grant a “No-Fault” divorce after the parties have lived separate and apart without any cohabitation and without interruption for more than one year.
However, if the parties have executed a Property Settlement Agreement or Marital Settlement Agreement, then the Court can grant a “No-Fault” divorce after the parties have lived “separate and apart” without any cohabitation and without interruption for more than six months as long as the parties have no minor children. If there are children then the period is one year. Code of Virginia Section 20-91 (https://law.lis.virginia.gov/vacode/title20/chapter6/section20-91/).
Therefore a party seeking a divorce on No-Fault grounds must wait either six months or one year to file a Complaint for Divorce.
What is separate and apart?
The parties must move into separate residences and one of the parties must have intended the separation to be permanent.
Can parties meet the requirement of living separate and apart if they continue to reside together?
The answer is yes, but the parties must meet certain elements to meet being separate and apart. There are a number of elements to reside together and meet being separate and apart.
A Court can grant a “Fault” divorce based on the following grounds:
(1) For adultery; or for sodomy or buggery committed outside the marriage;
(2) Where either of the parties subsequent to the marriage has been convicted of a felony, sentenced to confinement for more than one year and confined for such felony subsequent to such conviction, and cohabitation has not been resumed after knowledge of such confinement (in which case no pardon granted to the party so sentenced shall restore such party to his or her conjugal rights);
(3) Where either party has been guilty of cruelty, caused reasonable apprehension of bodily hurt, or willfully deserted or abandoned the other, such divorce may be decreed to the innocent party after a period of one year from the date of such act. Va. Code 20-91. (https://law.lis.virginia.gov/vacode/title20/chapter6/section20-91/).
Therefore a party seeking a divorce on Fault grounds can file a Complaint for Divorce immediately.
However, the Court can only grant a divorce before the one year separation in situations of adultery.
What is a legal separation?
There is no such thing as legal separation in VA. Separation is relevant in VA as it relates to a Court being able to grant a divorce as stated above.
