Divorce and Separation

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Divorce, Separation, and Annulment

 

There are two kinds of divorces: absolute and limited. An absolute divorce (also called a “divorce a vinculo matrimonii” – meaning from the bonds of matrimony) is a judicial termination of a marriage based on marital misconduct or other statutory cause arising after the marriage ceremony. As a result of an absolute divorce, both parties return to single status.

 

A court can grant an absolute divorce on five grounds:

 

  • Adultery, Sodomy, Buggery. No specific waiting period if residency requirement has been fulfilled.
  • Felony Conviction (with at least one year imprisonment).
  • Cruelty. One year of separation for such act. Cruelty that will support a divorce is anything that tends to cause bodily harm and renders cohabitation unsafe or that involves danger to life, the person, or health. A single act of cruelty will not support divorce on this ground.
  • Desertion. One year of separation for each act.
  • Voluntary separation. Either six months with a valid separation and no minor children agreement, or one year if there is no agreement or you have minor children.

 

Any one of these grounds, if proved, will result in the complete dissolution of the marriage.

Several jurisdictions (including Virginia) recognize limited divorces, also known as a “divorce a mensa et thoro.” The consequences of limited divorces vary from state to state. Typically, a limited divorce is commonly referred to as a separation decree; the right to cohabitation is terminated but the marriage is undissolved and the status of the parties is not altered.

 

In the case of a limited divorce, there are four (4) grounds for a court to grant a limited divorce:

 

  • Cruelty (against the child of the complaining party and/or against the complaining party)
  • Reasonable apprehension of bodily hurt
  • Desertion (construction and actual)
  • Willful abandonment

 

Many states have enacted what is called no-fault divorce. This is in response to outdated common law divorce which required the divorcing party to prove that the divorcee had committed at least one of several enumerated acts which were considered sufficient grounds for divorce (i.e. adultery). No-fault divorce eliminates this potentially embarrassing requirement of proof by providing for the dissolution of a marriage on a finding that the relationship is no longer workable.

 

Annulment establishes that your marital status never existed. The court will declare that you were never married. Annulments, however, are fairly rare. Divorces are preferred. In Virginia, the grounds for voidable annulments of marriage are bigamy; impotency at the time of marriage; conviction of a felony prior to marriage, but not discovered until after; the wife’s pregnancy at the time of the marriage with someone else’s child-a fact unknown to her husband; the husband’s siring of a child by another woman within ten months after the marriage; or the party’s having been (without the knowledge of the other) a prostitute before the marriage. If either party is under the age of consent (16 years old) the marriage may be declared void by the court.