Types of & Grounds for Divorce

Types of Divorce

The legal ground for a “no-fault” divorce is simply the passage of time. The time begins to run from the date of the parties’ separation, so long as, on that date. at least one of the parties separated (or remained separated) with an intent to divorce the other. In Virginia, the time that must pass is a minimum of one year. If the parties have no children and have entered into a written Separation Agreement, the period of separation may be cut to 6 months. Click

Fault grounds require a violation of the marital vows of fidelity, support or appropriate conduct. The most common grounds for a “fault-based” divorces are: adultery, desertion, cruelty, and conviction of a felony (and actual sentencing to the penitentiary). When the act of desertion or abandonment or cruelty have occurred less than 1 year from the filing of the divorce petition, only a divorce “from bed and board” can be granted by a court. When the act occurred more than one year from the filing date a “final” divorce can be sought. “Bed and board” and “final” divorce types will be more fully discussed below. The actual grounds for divorce are listed inVirginia Code Section 20-91
.

If you are filing for divorce, the “grounds” must exist before you file. If you cannot prove your grounds for divorce, wrongfully accusing your spouse of these grounds may be grounds for divorce by your spouse. Pending the final divorce, you should not do anything to give your spouse any grounds for divorce because it can, and probably will be, used against you.

An “uncontested” divorce requires that the parties agree to be divorced (or at least not to interfere with the other’s request for the divorce). Further (and this is a biggie), all marital property and support issues must have been resolved (or at least both parties must agree not to litigate them in the divorce court). You may demonstrate that you have resolved those issues in a written Property Settlement Agreement (a/k/a Separation Agreement). There are additional technical requirements that must be followed before the divorce can be made final, but the Property Settlement Agreement is the essence of an uncontested divorce

A traditional “contested” divorce occurs when the parties cannot agree on some point (property division, alimony, custody, child support, division of debts or attorney’s fees), and ask the attorney to intervene.

Yet another set of descriptive terms for divorce exists, and these describe the precise legal consequence of your divorce. The terms are in Latin“divorce a vinculo matrimonii”
(in English: “from the bonds of matrimony,” and more descriptively, a “final” divorce) and“divorce a mensa et thoro”
(English: “from bed and board”).

A divorce from the bonds of matrimony is a full and final divorce. You are legally allowed to remarry when you have been granted a divorce avinculo matrimonii
.

A divorce from bed and board is more akin to a legal separation provided for in most states. You are not “fully” divorced (i.e., allowed to remarry) if all you have is a divorce amensa et thoro
(and that is why most people do not pursue this type of divorce). Unlike in some other states, this “divorce from bed and board” status is not a required part of the final divorce process. Your attorney may, however, suggest that you file for a divorce “from bed and board” to allow you to get before a judge when you otherwise have no grounds to request a divorce “from the bonds of matrimony.”

An annulment is not a divorce, but it does result in a severance of what one or both parties believed was a marital union. Annulments may be granted by the court only in certain rare cases, generally involving fraud, duress or lack of capacity to consent relative to the formation of the marriage itself. The legal effect is to void the marriage from the very beginning — as if the parties had never married (except that children born during the purported marriage are considered born in wedlock.) If for religious or other reasons you need or want an annulment, tell your attorney before the divorce is filed so that you can discuss it. But to reiterate, if the marriage was legal to begin with, it cannot be annulled.

There is no such thing as a “legal separation” document in Virginia. If you are separated, you are “legally separated” (since you cannot go to jail just for being separated). No court order or documentation is necessary to further legitimize the separation. However, if you and your spouse are sure a divorce is imminent and are still talking, it may be advisable to begin discussing entering into a separation agreement (a/k/a Property Settlement Agreement) to handle civilly the issues that otherwise would need to be resolved in court.

In some isolated instances, a proceeding to pursue “Separate Maintenance” (sort of like alimony and spousal support) is advisable. This procedure is, in the eyes of most attorneys, not the preferred method of beginning the divorce process. You are still married for most purposes. You usually wind up divorced anyway, and instead of paying for one lawsuit, you pay for two. Strongly held religious beliefs may make pursuing a divorce impossible for some, but the need for court intervention to make sure that appropriate support is being provided by one spouse to the other (and to the children) is necessary. Also, sometimes jurisdictional grounds for divorce don’t exist, but the need for court intervention is critical. Pursuit of Separate Maintenance may be appropriate in these circumstances. So might an action in the local Juvenile and Domestic Relations District Court. Speak with your attorney as to the advisability of Separate Maintenance.

Most of the information contained in the other family law pages on this site deal with the more complex aspects of the divorce process. For couples who have already settled everything between them and who simply want to terminate their marital bonds, the depth of that other information is just too much. Many visitors to our site have asked for just a brief synopsis of the process that is followed for a “simple” no-fault and uncontested divorce.

So, in a nutshell, here is how we accomplish for our clients a no-fault, uncontested divorce. (But please read the caveat below.)

CAVEAT: Just because you and your spouse have agreed to a divorce, that alone does not mean that you meet the criteria for an ‘uncontested divorce’ as we we use that term on this and other pages on the site.

An “uncontested” divorce does simply mean that the parties agree to be divorced (or at least not to interfere with the other’s request for the divorce). It also means that the parties have resolved all custody, visitation, marital property and support issues (or at least both parties must agree not to litigate them in the divorce court).

Typically these issues are settled well ahead of any divorce filing in the form of a written Property Settlement Agreement (a/k/a “PSA” or “Separation Agreement”). There are additional technical requirements that must be followed before the uncontested divorce can be made final, but a pre-existing Property Settlement Agreement is the essence of an ‘uncontested divorce’ (see Property Settlement Agreement page elsewhere on this page)

Some people have been married such a short period of time that they have accumulated no property together, they have no children and do not intend to ask for support. In such cases, the divorce likely can safely proceed without a PSA. In all other cases, we strongly encourage a Property Settlement Agreement.

Complaint:
This is the document your attorney will draft following your initial visit to the office. It contains the essential factual allegations and legal elements which, when proven, would demonstrate to the court that you are eligible for a divorce. The elements contained in the typical “no-fault” Complaint are:

(a) the fact that your were married, where and when;

(b) jurisdictional and venue language (why the case is brought in Virginia, and why in the particular city or county);

(c) the age, mental competency and military status of both the husband and wife;

(d) the existence of any children;

(e) the date of the parties separation;

(f) the date of the parties separation;

The Complaint concludes with a request that the court grant the plaintiff (the person filing for the divorce) a divorce from the defendant.

About a week after you have retained the attorney, you will be asked to return to the office to review the Complaint for accuracy (to check for correct spellings of names, dates, etc.) and to sign it. Please do read the document carefully. While we rarely make such mistakes, one is possible, especially in spelling of names.

Filing:
The signed Bill of Complaint is mailed (or hand carried, for faster action–talk with your attorney about this option) to the Clerk of the appropriate Circuit Court. When marked “received” by the Clerk, your case is considered “filed.”

Service of Process:
After the case is filed, the Clerk will send a copy of the Complaint, along with a cover sheet called a “Summons,” to the sheriff of the jurisdiction where your spouse resides. It is the sheriff’s job to serve the Complaint and the Summons on your spouse. The Summons advises your spouse that a divorce action has been filed and if he or she wishes to oppose it, he or she has 21 days to file a response. Otherwise, a “default” can be entered. (Actually, in Virginia, a divorce can never be granted “by default.” Evidence proving an entitlement to a divorce must always be presented. But if your spouse does not respond to the paperwork within 21 days, you can at least proceed to the deposition phase of the process without waiting any longer.)

Oftentimes, the spouse doesn’t want the sheriff coming by the house or work site, and is willing to sign a “Waiver.” In the typical waiver, your spouse waives the requirement of actual sheriff service, waives the 21 day ‘response’ period, waives the requirements of other notices that might be required (so long as there is not a request for money, property, custody or visitation which is different from the provisions of any Separation Agreement), and states that he or she also wishes the divorce to be granted as soon as possible. Even with a waiver, you (the plaintiff) must still prove the facts alleged in the Bill of Complaint. See Depositions, below.

Depositions:
In an uncontested divorce case, you generally will not need to appear in court to testify. You need only to come to your attorney’s office at the pre-set time to give a deposition (testimony under oath that is give to the judge in written form). You must bring one witness with you who can verify the essential aspects of your case. Note: the witness must be able to testify to all of the matters set out in your Complaint, so make sure you read that document and begin thinking about who your witness will be a bit ahead of time. The witness should be somebody who knows you well (and has know you for a reasonably long period of time). Hopefully the witness will also know your spouse. A relative of you or your spouse is fine, and sometimes preferable, since a relative generally knows the living arrangements of the parties fairly well.

The testimony taken at the depositions is typed up and sent to the judge in this written form.

In certain jurisdictions, most notably Hampton and all of the Southside Hampton Roads cities, the deposition is taken in front of a judge. The judge listens to live testimony and that of your witness, and rules on the spot whether you have proven your divorce grounds. It’s a bit more expensive, but you really have no choice in the matter.

Final Decree:
Once the the testimony has been taken at the depositions, it is submitted to a judge for his or her review. The judge will read the entire file and determine for him/herself that the substantive and technical requirements of granting the divorce have been met. If they have, the judge will declare that the parties are divorced by signing a document called a final decree. If a separation agreement has been submitted by the parties for approval by the judge, the judge will typically make the separation agreement a part of the final decree.

The timing for the return of the final decree to our office is about 2 to 3 weeks after the taking of the deposition. (If the testimony was taken in front of the judge, there typically is no wait. We have all the paperwork for the judge’s signature.)

Once the final decree is signed by the judge, you are divorced. Your divorce will be really, really final and unappealable thirty days after the judge signs the final decree. Your “official” divorce date, however, is the actual day the judge signs the Final Decree.

Somewhere in the divorce process, most couples eventually come to terms regarding their children’s custody, support issues (both child and spousal support), their property interests and their debts. When this agreement is reached and put to writing it is generally referred to as a Property Settlement Agreement (usually abbreviated “PSA”) or Separation Agreement.

Domestic relations cases usually settle in the beginning when both parties feel a bit guilty or desirous of “getting it over with right now” or in the end when both are exhausted. It is the rare case that is fully litigated in the proverbial “knock down, drag out, unlimited mud-slinging” fashion. A very wise judge said that only the two parties to a divorce have the knowledge and the information necessary to arrive at a fair settlement. No matter how much time a judge devotes to hearing a case, no judge could ever order as fair a result for the family as two mature adults acting in good faith can do regarding their former united assets. We believe that to be the case. Lawyers are best used to add substance to vague ideas, put language to images, and offer constructive thoughts on how to overcome seemingly insurmountable hurdles. Use us for that and you will be getting true value for your hard-earned money. Sometimes (and sometimes it is our client), one of the parties will act totally irrationally and litigation is the only solution. Even in that situation, a property/custody settlement agreement is feasible, as the two attorneys attempt to bring reason to the situation.

Normally your attorney (or your spouse’s attorney) will draw up the agreement (even when it is fully agreed to). While you may draft your own agreement, we do not advise this. This is not because we want to make a fee off your case. Experienced domestic relations attorneys know how to write these things. We know the language the judges look for to “seal” the deal, to make concrete the agreement, to tie up loose ends, close loopholes, and in every other manner make sure you have in writing what you bargained for.

You may include many things in your agreement, but the subjects covered can be summarized into these … -Black Couples and Relationship …four major categories:

(1) Custody of the child/ren, and visitation arrangements.

(2) Support (both child support and spousal support, including health and life insurance protection).

(3) Division of Property (the house, the cars, the stocks, the retirement pay, and the dog.)

(4) Division of Debts (in addition to the Master Card, don’t forget the property taxes on the boat).

Other issues must also be resolved, but they generally are subcategories of the above four. Some of these important issues are court costs and attorney’s fees — Who pays? Who gets to claim the children as income tax deductions? Private school or college tuition?

If, and as, you try to work something out with your spouse without using an attorney, the following are some useful pointers to remember:

Meet On Neutral Ground:
Not at her office or at his mother’s home, but some place where you both will feel comfortable. Put aside time — A reasonable amount of time should be set aside to deal with the issues. If you leave to answer a telephone call just as you almost have things worked out, you may find that things have fallen apart when you get back. On the other hand, do not leave the meeting time open-ended. A meeting without a deadline will drag on and issues will not get resolved.

Keep The Kids Out Of It:
Your children do not need to be involved in this. Do not have them around. They will interrupt you, and it will upset them.

Set An Agenda:
Decide what will be dealt with at the meeting. “This week we will decide on custody and child support, next week we will decide on the house.”

Do Not Bog Down:
Try to talk about what you agree on. No matter how bad it is, there are some things you agree on (“the marriage stinks” or “the kids are cute”). If you hit a point that gives you trouble, move on to something else and come back to the problem after you have resolved some other issues. DON’T YELL! Stay calm. If you or your spouse begins to shout, do what you do with your kids. Go to “time out.” Do not let your spouse drag you down to an immature level.

Reschedule As Needed:
If things start to turn nasty, if someone gets angry, or if you think you are losing everything, stop! Re-schedule the meeting for another time. It is important that both of you feel that the agreement is a good thing.

Start Talking Early:
Divorces usually settle early on when both parties feel guilty and are not locked into a position, or divorces settle after much litigation when the parties are too exhausted to fight anymore. Sometimes you can get more with guilt than you can get at a trial.

Trust Your Attorney:
If your attorney said in an earlier conference that “X” is the law, and your spouse tells you that the law is “Y,” believe what your attorney said. For example, if your attorney says that you can claim a share of your spouse’s military retirement after a marriage of 9 years, and your spouse says it can only happen after 10 years, don’t forfeit your claim to the retirement. Your attorney was right. The first person that will lie to or mislead you about property and “the law” is your spouse. Unfortunately, we find that the first person you will tend to believe (especially –and not to be sexist– the wives) will be your spouse.

Know When Not To Continue The Process:
If you find yourself at a negotiating disadvantage (due to intimidation, past abuse, threats of physical harm or “I’ll take the children if you don’t accept my terms” type pressure, domination of the process, etc.) cut off negotiations and let your attorney handle things.

If you and your spouse work out something and you make notes, do not sign the notes. This could be considered to be an agreement. If it is not in the correct legal language, you may be bound to something other than what you thought you agreed to.

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