|
|
 |
|
 |
 |
In Virginia, there are two types of divorce. There is what is termed a Divorce a Mensa et Thoro, meaning a divorce from "bed and board," which in actuality is a legal separation, and then there is what is termed a Divorce a Vinculo Matrimonii, meaning a divorce from "the bonds of matrimony," which is an absolute divorce. In either case, a divorce in Virginia is granted by a Circuit Court.
In order to file for divorce in Virginia, at least one party to the divorce must be a bona fide resident and domiciliary of the Commonwealth for at least six months prior to filing suit for divorce.
Divorce a Mensa et Thoro (divorce from "bed and board")
A divorce a mensa et thoro, or from "bed and board," is not an absolute divorce. Rather, it is a legal separation whereby the parties are allowed to live separate and apart, with protection afforded to the personal and property rights of each party respectively, for what could be a permanent arrangement if so desired by the parties. Under a court decree awarding a divorce a mensa et thoro, neither party may remarry. However, oftentimes a divorce a mensa et thoro is later merged into a divorce a vinculo matrimonii, an absolute divorce from the bonds of matrimony, when both parties may live their lives truly independent of each other, to include electing to enter into marriage again with someone else.
There are two grounds available that would support a circuit court granting a divorce a mensa et thoro. The two grounds are: (1) cruelty or reasonable apprehension of bodily harm or hurt; or (2) willful desertion or abandonment.
(1) Cruelty or Reasonable Apprehension of Bodily Harm or Hurt: Cruelty or reasonable apprehension of bodily harm or hurt is established when any conduct renders continued marital cohabitation unsafe, or where there is conduct that endangers the life, limb, or health of the non-offending spouse. The behavior constituting cruelty usually involves successive acts, although a single atrocious act can be judged sufficient to establish the ground. Those acts constituting cruelty must be serious and cannot be due merely to marital disharmony.
(2) Willful Desertion or Abandonment: There are two elements that must exist to establish the ground of willful desertion or abandonment. First, there must be an actual breaking of the matrimonial cohabitation; and secondly, the party who broke the matrimonial cohabitation did so with the intent to desert. However, separation by mutual consent is not desertion by either party, and one spouse is not guilty of desertion for separating from the other spouse upon the filing of suit for divorce, or while that suit is pending.
If a divorce a mensa et thoro is granted based upon either of the two grounds identified above, the parties may later merge the divorce a mensa et thoro into a divorce a vinculo matrimonii, an absolute divorce, after the parties have remained separated for at least one year from the date of the initial separation.
Divorce a Vinculo Matrimonii (divorce from the "bonds of matrimony")
In the Commonwealth, there are five grounds available upon which to seek an absolute divorce, any one of which will allow for the granting of a divorce a vinculo matrimonii. The five grounds are: (1) adultery, sodomy, or buggery committed outside the marriage; (2) a felony conviction; (3) cruelty or reasonable apprehension of bodily harm or hurt; (4) willful desertion or abandonment; or (5) what is termed a "no fault" ground.
(1) Adultery, Sodomy, or Buggery: In order to establish this ground in support of a divorce a vinculo matrimonii, it must be proven through "clear and convincing" evidence that a party to the marriage engaged in sexual intercourse with another person not his or her spouse. Sodomy and buggery are also grounds for divorce if committed outside of the marriage.
(2) Felony Conviction: This ground is established when a spouse is convicted of a felony, is sentenced to confinement for more than one year, and who is then actually confined.
(3) Cruelty or Reasonable Apprehension of Bodily Hurt or Harm: This ground is the same as that identified above under a divorce a mensa et thoro, except that the parties must have been separated for at least one year before a divorce a vinculo matrimonii, an absolute divorce, can be granted.
(4) Willful Desertion or Abandonment: This ground is the same as that identified above under a divorce a mensa et thoro, except that the parties must have been separated for at least one year before a divorce a vinculo matrimonii, an absolute divorce, can be granted.
(5) "No Fault": In order to initiate suit for a divorce a vinculo matrimonii upon a "no fault" ground, the following must be shown to have occurred:
(a) the parties have lived separate and apart, (b) without cohabitation, (c) and the separation has been without interruption, and (d) if there is a child or children born of the marriage, the separation must have continued for at least one year, or (e) if the parties have no children and have entered into a written separation agreement, a separation of only six months is required.
Notice of Disclaimer: The content herein is meant only to provide a brief introduction and limited overview of the law concerning divorce in Virginia, and it may or may not reflect the most current legal developments. The information contained herein is not meant to provide legal advice or counsel and it should not be used as such, nor is it intended to create an attorney-client relationship with the reader. The circumstances involved in your case are unique and may involve many complex and intricate legal issues. You are advised to seek consultation with an attorney of your choice for a complete assessment of your particular situation.
|
 |
| |
 |
|
