“I want to file for a legal separation.” The statement, although often heard, has no meaning in Virginia’s divorce process. Separation of the parties to a marriage is a condition to either party filing for a divorce if time apart is the sole ground (a “no fault” divorce). Intent must also be present. The parties must have separated with one of them intending to live separate and apart from the other continuously and without interruption for the statutorily established length of time. Also, there must have existed, at the time of separation, the intent to ultimately end the marriage in divorce. The lesson? A married couple may have separated but not have had the required intent in separating to establish grounds for a divorce.
Where the necessary intent is present, the required length of separation must be considered. If the parties have children under the age of 18 years the required separation period is twelve months. If the parties have no children and cannot agree about property division, then they also must be separated for a period of twelve months. However, if the parties have no children, or their children are all over the age of eighteen, then the required separation period may be six months, but only if the parties have signed a property settlement agreement.
When fault is alleged as grounds for divorce, a divorce can be filed without a separation period. Fault-based divorce may allege cruelty, desertion, constructive desertion, and/or adultery. The court can determine if fault-based grounds of divorce exist, however, a final decree of divorce cannot be obtained prior to the parties living separate and apart for a period of twelve months.
To determine if you, as a party to a marriage, can successfully use separation or fault as grounds for divorce in Virginia, consult an attorney.