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Virginia Grounds for Divorce

Virtually all States now have "no-fault" grounds for divorce. Most of these States also, still, have available the traditional "fault" grounds (primarily, adultery, cruelty, desertion and "constructive desertion"). D.C. is an exception to this "rule"; the only grounds for "absolute divorce" (i.e., the type which frees one to remarry) in D.C. are the "no-fault" grounds (although, even in D.C., "fault" may have relevance regarding the more difficult and dynamic issues). Because of the relative expeditiousness and inexpensiveness of the "no-fault" divorce process, as a practical matter, these days, the only rational reasons people use the "fault" grounds are in connection with the more difficult issues. And, even where cases are initiated on "fault" grounds (in Virginia), once these other issues are settled, because of speed and cost factors, usually, the divorce is in fact "finalized" on the applicable "no-fault" ground.

Even in Virginia, at least since and after the late 1980's, our Courts have made it increasingly clear that "personal fault" in dissolving a marriage usually tends to be rather irrelevant in terms of resolving "the dynamic issues. " Primarily, adultery (which "causes dissolution of the marriage") of the person seeking spousal support ; and, regarding custody and visitation issues, "exposing" minor children to overnight (and other) visits by "friends" of the opposite sex (even after divorce!) -- are the remaining verboten items. Theoretically, "fault" grounds per se have no relevance whatsoever to deciding custody issues; and they are even more definitely irrelevant to child support. (4)

A September 1988 Virginia Court of Appeals decision virtually stated that "personal fault" (i.e., as opposed to "economic fault" which causes dissipation of "marital property") was irrelevant to deciding issues of division of "marital property. " A June 1995 Virginia Court of Appeals decision somewhat revitalized "personal fault" in connection with (contested) property division.(5) And beware of assuming that the "lesser" (personal) fault grounds (e.g.., cruelty and desertion) are absolutely nothing to worry about now in Virginia (or D.C.), in resolving the "more difficult issues." Carefully discuss this (all) with your lawyer (and follow his or her advice!)

In both Virginia and D.C. there are two "no-fault" grounds for ("absolute") divorce. In Virginia, if there are no minor (under 18) children and the couple has a written separation agreement, after six months of sufficient continuous physical separation, without "cohabitation" (for marital-discord reasons, during which at least one of the spouses intended that the separation was other than a mere "trial separation") -either party may file for divorce. If there are minor children, or, even if there aren't, if the couple has not signed a separation agreement -- the "waiting period" (of sufficient continuous physical separation, without "cohabitation") is one year. In D.C., regardless of whether there are minor children [for custody and child support purposes, in D.C., the age of (effective) "majority" is 21] -- after the physical separation has been by mutual consent for a period of six continuous months (also, without intervening "cohabitation"), either party may file for divorce on the no-fault ground; otherwise, the "waiting period" is one year in D.C., also. In D.C., a written separation agreement is not needed to prove sufficient "mutual consent" (to invoke the six-month no-fault ground). Actually, the Virginia provision does not expressly state that a written separation agreement is needed, but that is the way at least the vast majority of the judges and lawyers are interpreting the statutory language.

The public policy rationale behind "no-fault" divorce grounds can be summed up in the title of a song; "it takes two to tango." The law has long since realized that it does not make good public policy sense to ignore, in terms of granting the imprimatur of "single" status, what has in fact transpired as a matter of personal fact. The law cannot force two people to love each other, stay together, be good spouses for each other [in their own respective eyes, let alone in the view of the proverbial "objective reasonable person" to whom we so often refer (if only we could find that person!)], etc. If one spouse "wants out". . .

Consequently, the essence of true "no-fault" provisions is that they are available for invocation (once the applicable requirements have been met), by either party -- regardless of whether the other spouse "consents " (except that, as noted above, consent may expedite, slightly, the time by which either spouse may file for divorce on the "no-fault" ground); and regardless of "fault." The other spouse is entitled to appropriate " notice " of the proceedings, and " an opportunity to be heard. " But, where " the more difficult issues" have in fact been resolved by Agreement -- or, as a practical matter, are not involved, except for possible delay purposes, these are largely pro forma "rights." And, if the spouse (and his or her lawyer!) who seeks the divorce keeps "pushing it" through, the extra delay which the reticent spouse can occasion is not very long ( i.e., a few months, at most -- where there aren't property, etc., matters to resolve . . . ).

In Virginia, usually an uncontested "no-fault" divorce takes about three to four months to "run through" the Court. And the "ore tenus" procedures available in Fairfax and Arlington Counties and the City of Alexandria (but not in Arlington County) usually cut these relatively short periods about in half. Use of this procedure in Prince William will save $200 in Court costs, but usually will not expedite the divorce process. Use of an analogous approach in Loudoun also will expedite the time needed to process the divorce. Moreover, active cooperation by the other spouse can expedite the process. In Virginia, execution of a "waiver of notice" form can not only expedite the process, but also reduce the costs somewhat; otherwise, the "super-expeditious" approaches usually require participation by lawyers for both spouses -- thus increasing costs).

In both (if not all) States, even the uncontested "no-fault" divorce entails a "hearing. " During this hearing, the moving party, and his or her "corroborating independent witness" (i.e., anyone other than the two spouses) actually testify under oath, and prove the (monumental) "no-fault" grounds (i.e., continuous physical separation during the required period, etc.), and fulfillment of the residence requirements (testimony of an "Independent witness" is not always required in D.C.).

The requirements of proving the "no-fault" grounds and State residency for the required period pre-date (virtually nationwide availability of) the "no-fault" grounds; when some couples would "shop around" for a more lenient jurisdiction; or they would "collude" to obtain a divorce on one of the "fault" grounds. The retention of these requirements in "no-fault" cases, and the resulting inconvenience and costs (such as they may be) involved in "no-fault" divorce cases, it is said, like the "waiting periods," help the State protect its interest in ensuring that it does not sever the important institution of marriage in an unduly precipitous fashion. Indeed, in some states, "the process" is the State's only such "protection"; there, the no-fault " grounds are " irreconcilable differences, " " irretrievable breakdown of the marriage, " etc.

4 Whoever is the primary physical custodian, and, hence, will be making the bulk of the out-of-pocket expenditures for the children, has a right to seek an appropriate contribution from the "non-custodial"parent toward the costs of supporting the children (usually, not the entirety of these costs) -- which we call "child support."

4 But, even in that case, which the trial judge stated he viewed as involving the worst example of "personal fault" he had ever witnessed in a case tried before him, the issue essentially was whether or not the Court had the power to award 60% (as opposed to 50%) of the couple's marital net worth to the wife, as a result of the husband's "negative non-monetary contributions" to the marriage.


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