History of Divorce: Evolving Law
Until the 17th century the only divorce was a divorce from bed and board granted by the ecclesiastical (church) courts to a wife upon proof of desertion or abuse. This type of divorce did not dissolve the marriage or allow for remarriage thereafter. Only death dissolved the bond of marriage.
In England, after the reign of Henry VIII, an absolute divorce dissolving the bond of matrimony and allowing remarriage could only be obtained by a special act of Parliament. In Virginia, courts had no authority to grant divorces. Persons seeking divorce had to petition the legislature. It was not until 1841 that an absolute divorce allowing remarriage became obtainable through a judicial proceeding in Virginia. Thereafter over time, additional grounds for divorce were allowed.
In 1960, Virginia introduced its first experiment with “no fault” divorce, requiring separation for a three-year period. The original intent of the statute was to recognize in law those marriages which had ceased to exist in fact. Thereafter the separation period has been gradually reduced to as low as six months. It’s hard to realize that divorce was quite restricted worldwide, especially in predominantly Catholic countries. Movie buffs might remember that there’s a classic movie entitled “Divorce Italian-Style” from the 1960’s in which a man is seeking to murder his wife because he cannot divorce her so that he can remarry.
Why You Need a Lawyer
Because there is no historic basis for common law divorce, it is a creature of statute. This means that the statutory requirements must be followed in every detail. Unless you are familiar with the laws and procedures governing divorce in your state, you need to retain a good family law attorney. In fact, even if you are somewhat familiar with the laws and procedures governing divorce, emotional tensions and stress associated with separation and divorce makes it difficult for individuals to make sound decisions. If our are facing these decisions, you should retain an experienced family law attorney to advise and counsel you. For a more detailed rationale see my article entitled “Why You Need a Divorce Lawyer” available for free down load for personal use through this website.
Grounds for Divorce (In Virginia); Different Types of Divorce
There are two types of divorce in Virginia. A bed and board decree is a partial or qualified divorce under which the bond of marriage is not entirely dissolved. Under this type of divorce, the court decrees that the husband and wife are to live perpetually separate in their persons and property. They are divorced for most purposes, but the marriage bond is not completely severed. Neither party is free to marry another person or to engage in sexual relations with another person. Such a subsequent marriage would be bigamous and such relations would constitute adultery. On the other hand, in the event the couple should reconcile and resume cohabitation, they may petition the court to dismiss the divorce. The other type of divorce, a divorce from the bond of matrimony, dissolves the bond of marriage and re-establishes the individual as single such that the party may marry again.
Must Prove Grounds
Even if both husband and wife agree on a divorce, grounds or legally prescribed reasons must exist and be proven to the satisfaction of the court.
The grounds for divorce from bed and board are (1) willful desertion or abandonment or (2) cruelty and reasonable apprehension of bodily harm. Desertion is a unilateral cessation of cohabitation with intent to remain apart permanently in the mind of the offender. Separation by mutual consent is not desertion. Leaving the marital home for a weekend or a long weekend with the intent to return is not desertion. On the other hand, if a spouse is forced to leave by the cruel acts of the other, he or she is not guilty of desertion and may be awarded a divorce upon the ground of cruelty. If a spouse was justified in leaving the marriage, he is not guilty of desertion.
Acts that tend to cause bodily harm and render cohabitation unsafe constitute the ground fo cruelty. If the conduct of a spouse is so outrageous as to harm or endanger the mental or physical health of the other spouse, this can amount to cruelty sufficient to establish grounds for divorce.
Grounds for Absolute Divorce
The grounds for an absolute divorce dissolving the bond of matrimony are found in Virginia Code 20-91. The grounds include: adultery; sodomy or buggery committed outside of the marriage; desertion for one year or cruelty followed by a one-year separation; during the marriage, one party has been convicted of a felony and sentenced to more than one year and confined subsequent to the conviction (and there has been no cohabitation after knowledge of the confinement; separating with the intention of remaining apart permanently and remaining apart for one year or more, or in the event that there are no minor children born or adopted by the parties and the parties have entered into a written property settlement six months.
Proving Adultery/Defending Adultery
Adultery occurs when “any person, being married, voluntarily has sexual intercourse with any person not his or her spouse.” VC 18.2-365 The proof of adultery need not be “eyewitness” testimony and may be circumstantial. Proof of adultery must be “clear and convincing.” This is the highest standard of proof in the civil law. The court has said the proof must be “strict, satisfactory and conclusive.” Suspicious circumstances are not enough. Even though most cases must be built from circumstantial evidence, the circumstances must be such as to “lead the guarded discretion of a reasonable and just man to a conclusion of guilt.”
Sexual acts other than intercourse, such as oral or anal sex may also form the grounds of divorce, if committed outside of marriage. The standard of proof is the same a for adultery. Defenses to a claim of adultery include condonation or forgiveness of the act by cohabitation after knowledge of the act, and procurement or connivance by encouraging or making the act possible or entrapping the spouse. Where this is shown, no divorce will be granted on this ground. The petitioning spouse must be innocent of such wrongdoing. Impotency is another defense to this ground. There is also a five-year statute of limitations; such that the act must have occurred within five years of the petition for divorce.
Conviction of a Felony
If during the marriage, a spouse is convicted of a felony and sentenced o the penitentiary for more than one year and is in fact confined, the other spouse has grounds for divorce, provided he or she does not resume cohabitation with the guilty spouse after knowledge of the conviction and confinement.
The court is not obligated to grant a divorce on the grounds of separation for the statutory period to the exclusion of other fault grounds for divorce. On the other hand, even if fault grounds are alleged, if the parties have been separated for the statutory period, the court has discretion to award a divorce on the grounds of separation for the statutory period.
VC 20-121 allows either party a divorce on the ground of separation for the statutory period without filing amended pleadings. In cases where the parties have entered into a written property settlement agreement and there are no minor children born or adopted, the period would be six months. In other cases the period would be one year.
Intent is Key
There must be an intention to remain apart permanently at the inception of the period of separation. This intention must also be communicated to the other spouse. Virginia does not favor divorce by ambush and will not recognize or allow extended separations required for reasons other than divorce to ripen into “instant divorce.” The separation period is intended to give the parties time to contemplate carefully their actions in the dissolution of the marriage. In reality in many cases, it has become an “easy out” for a disgruntled spouse who has no legitimate reason to divorce.
Historically, separation required establishing separate households; however, some judges have been granting divorces based upon a no fault separation with the parties separated within the same house under the same roof. The authority for this development is a single decision of the Virginia Court of Appeals. In that case, the wife found a video of her husband having intercourse with another woman. She removed his clothing and effects from the master bedroom and put them in a guest room. From that day, the parties slept separately, ate separately, did their own laundry and dry cleaning and cleaned their respective areas of the house. They no longer watched t.v. together, attended church together or family functions together. They no longer took family vacations together. The court was satisfied that they were no longer a couple and were truly living separately under the same roof. It is important to consider that you will have to prove that you are no longer a couple and that proof must be corroborated. You cannot get a divorce on your uncorroborated testimony. Your spouse may not provide the corroboration. Be sure that family and friends have an opportunity to observe your living arrangements and can provide the corroboration you need.
With the current financial climate, you may not be able to afford to establish two households. It is and has always been more expensive to carry two households than it is for a single one. Perhaps separating under the same roof would work for you. We do not recommend it where there are minor children. You should discuss your situation with your attorney and seek sound legal advice as to how to proceed in your best interests and that of your family.
Filing for Divorce
In filing for divorce one may request additional relief to include a determination of custody child support, visitation rights, equitable property division, equitable division of marital debt, lump sum spousal support, rehabilitative spousal support, temporary spousal support, permanent spousal support, and ratification of the parties’ separation agreement, if any. Relief may also include judgment for money owing or judgment for damages for civil wrongs, provided it fits within the jurisdiction of the divorce court. For more information see my articles entitled “Getting Your Fair Share: What Documents You Should Provide to Your Lawyer” and “What You Need to Know About Domicile and Legal Residence” available for free download for personal use through this website.
This can be the most important issue in the divorce. These days there is no presumption in favor of either parent. The standard applied by the court for custody determination is “the best interest of the child.’ Custody will not be awarded to “punish” a “guilty” parent. On the other hand, the court will determine which parent is most adept for the task of caring for, controlling and directing the child. The court must weigh all the facts and circumstances to determine the arrangement which will best meet the child’s best interests. Other factors considered by the court include: the age of the parents, the age of the children, the physical condition and mental condition of the parents and children, the relationship existing between each parent and each child, the needs of the children, the role played by each parent in the upbringing and care for the child, the home where the child will live and the child’s wishes, if the child is of sufficient age, intelligence and maturity to make such a decision.
Once a court has made a determination of custody, the court will consider a change in custody only upon a showing of a material change in circumstances, such that a change I custody is “in the best interests of the child.”
The non-custodial parent will be ordered to pay support in accordance with the combined income of the parties and the statutory guidelines. The guideline amount is presumed to be the appropriate amount, but the court may depart from the guideline, for just cause in an appropriate case. Support is subject to change and may be increased or decreased, upon a showing of a material change in circumstances of either or both parents of the child. If the child spends more than 110 days per year “visiting” the non-custodial parent, the child support is calculated using a different formula which results in a lower amount.
You may not withhold child support to punish the custodial parent for infractions of your visitation rights. On the other hand, if you are the custodial parent, you may not deny visitation because the non-custodial parent is delinquent in child support. The two rights of visitation and support are independent of each other. Remember that it is the child who has the right to support and it is the child who has the right to see and visit with both parents.
Taking Control; Make a Contract
Under Virginia law, spouses may agree between themselves as to a resolution of issues, rights, duties and obligations arising out of the marriage and separation. These agreements must be in writing and signed by the parties and may include such matters as division of their property, division of their debt, spousal support, attorney’s fees, custody of their children, visitation arrangements, and child support. Provision may be made for anticipated future need, such as children’s college expenses, provision of life insurance. The contract can also provide for mediation of disputes before going to court. Provisions dealing with spousal support are binding upon the parties and may not be altered by the court absent legal basis to rescind or modify the contract. The contract may provide for modification of spousal support, but if it does not, then support may not be modified absent a legal basis to rescind the contract.
The possibilities for contract terms are more varied and flexible than the remedies available from the court. You can do by agreement things that the court in dividing marital property and adjudicating your rights may not be able to do. Once you have negotiated such an agreement, the agreement must be reduced to writing, and signed by both of you. It is a good idea to have it notarized, although strictly speaking notarization is not necessary. But it protects against a party asserting that he or she did not sign the document. The court will not accept an agreement that is not signed.
For more information on separation agreements or property settlement agreements, see my article entitled “What You Should Know About Separation Agreements” which is available for free download for personal use through this website.
Why You Need a Lawyer (Again)
The complexities of family law, coupled with the emotional trauma and tensions associated with separation and divorce make it difficult for you to make objective decisions at a time when life-changing decisions are required. An experienced, seasoned attorney with a background in counseling and negotiation and a specialized knowledge of family law can assist you in navigating the stormy waters of separation and divorce. It has been said: “In the multitude of counselors is wisdom” and “every purpose is established by counsel; by wise counsel wage war.” When faced with separation or possibly dissolution of your marriage and family one of your counselors should be an experienced family lawyer.
For more information on how to choose a lawyer, see my article entitled “The 12 Biggest Mistakes People Make in Hiring a Lawyer (And How to Avoid Them)” which is available for free download for personal use on the EzineArticles website.