2.8 DIVORCE—FINAL
2.801 Complaint.
A. Introduction. Jurisdiction in a divorce suit is purely statutory and does not encompass broad equitable powers not conferred by statute. 150 The jurisdiction of a court to grant a divorce is dependent upon the facts that are pled. 151 Every pleading should state the essential facts in such a way as to clearly inform the opposite party of the "true nature of the claim or defense." 152 Sufficient facts must be alleged to support the required elements of the claims, or the pleading will be subject to demurrer. Allegations of legal conclusions are insufficient. 153 The court cannot grant relief concerning an issue not pled. 154 Counsel should ensure that all claims are pled and cannot rely on a general claim for equitable relief. 155
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B. Facts to Be Pled. A complaint for divorce should include factual allegations regarding the following:
| 1. | The date and place of the marriage; 156 | |
| 2. | The age of each spouse (over 18); | |
| 3. | The Social Security number or Department of Motor Vehicle (DMV) control number of each spouse (required in the decree 157 but not necessarily in the complaint); | |
| 4. | The residential address of each spouse at the time the suit is filed; 158 | |
| 5. | That one or both parties has been a bona fide resident and domiciliary of Virginia for the six months immediately preceding the filing of the suit; | |
| 6. | The military or nonmilitary status of the defendant; | |
| 7. | The names and dates of birth of children; | |
| 8. | Venue for the suit (where parties last cohabited, where the defendant resides, or where the plaintiff resides if the defendant is a nonresident); | |
| 9. | The essential facts establishing a ground for the divorce (for example, in a divorce based upon a separation, the facts recited would include the date of separation, the intent to separate permanently by one of the parties, and that the separation has been continuous and uninterrupted); 159 |
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| 10. | That a reconciliation of the parties is not probable. (But an offer of reconciliation need not be alleged or proven in a suit based upon the ground of desertion or abandonment.); 160 | |
| 11. | If the parties have entered into an agreement, the agreement must be identified; 161 | |
| 12. | If the plaintiff seeks relief concerning collateral issues, such as child custody, support, or other matters, the essential facts needed to support each claim for relief sought from the court must be pled; 162 and | |
| 13. | If child custody or visitation is an issue, the information required by the Uniform Child Custody Jurisdiction and Enforcement Act 163 must appear in the party's first pleading or in an affidavit attached to the pleading. 164 |
C. Grounds—Overview. The grounds for a final divorce, or divorce a vinculo matrimonii, include the following:
| 1. | A separation of six months, if the parties have no minor children and have entered into a separation agreement; 165 | |
| 2. | A separation of 12 months; 166 | |
| 3. | Adultery;1 67 |
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| 4. | Felony conviction and confinement in excess of one year; 168 | |
| 5. | Cruelty or causing "reasonable apprehension of bodily hurt" after a period of one year from the date of the acts; 169 and | |
| 6. | Willful desertion or abandonment after a period of one year from the date of the act. 170 |
In pleading grounds for a divorce, specific facts should be alleged. An action based on willful desertion or abandonment must plead two essential elements: (i) the actual breaking off of the matrimonial cohabitation and (ii) the intent to desert in the mind of the deserting party. It is not necessary to plead a lack of consent to the desertion or that an offer of reconciliation was made. 171 In an action based on the ground of cruelty, the complaint must set forth the specific facts in detail. 172 Specific allegations are particularly important in suits brought on the ground of adultery. While the name of the paramour does not need to be stated, the time, place, and circumstances should be set forth so that the defendant will be able to respond to the charge. 173 Allegations concerning the dates when the adulterous conduct took place are also important, because a suit for adultery must be instituted within five years of the act alleged. 174
D. Pleading Facts in Support of Collateral Relief. The complaint should state a claim for each type of relief sought from the court. 175 The better practice is to plead the essential facts in support of each claim, although some claims will be heard even when raised only in the form of a request for relief. 176 Claims for collateral relief may concern the following:
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| 1. | Child custody and visitation; | |
| 2. | Child support; | |
| 3. | Spousal support and maintenance (or a reservation of jurisdiction to award support in the future); | |
| 4. | Equitable distribution of property and other relief under section 20-107.3; and | |
| 5. | Change of name to maiden or former name. |
E. Prayer for Relief. In the prayer for relief ("Wherefore . . ."), counsel should ask the court to grant each different form of relief sought by the plaintiff. In Reid v. Reid, 177 a husband's complaint properly invoked the court's jurisdiction to decree a divorce. The absence of a specific request for an adjudication of spousal support precluded the court from obtaining jurisdiction over that subject matter.
A modern interpretation of pleading allows the court to grant relief as long as sufficient allegations of fact would support some relief, even where the relief granted is different from the relief requested. 178 Nevertheless, the right must be pled and claimed. Counsel cannot rely on a general prayer "for such other and further relief as the nature of the case may require." 179
2.802 Grounds for Final Divorce.
A. Separation of Six Months. A final decree of divorce can be granted based on a separation of six months if (i) the parties have entered into a separation agreement and (ii) there are no minor children. 180 The phrase "no minor children" is expanded in the statute to mean that there are no minor children (i) born of the parties; (ii) born of either party and adopted by the other; or (iii) adopted by both parties.
As in a separation of 12 months, the six-month separation must be one in which the parties have lived separate and apart without any cohabitation
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and without interruption for the required period of time. The parties must have lived separate and apart for the requisite period before filing the complaint. 181 Additionally, at least one of the parties must have intended for the separation to be permanent at the time it commenced. 182 For a complaint upon the ground of a six-month separation, see Appendix 2-42.
B. Separation of 12 Months. A final decree of divorce may be granted based on a separation of 12 months. As with the six-month separation, the parties must have lived separate and apart without any cohabitation and without interruption for the full 12 months. 183 The parties must have lived separate and apart for the requisite period before filing the complaint. 184 At least one of the parties must have intended for the separation to be permanent at the time it commenced. 185
There is no requirement that the parties reach a separation agreement or property settlement agreement resolving the various issues in the marriage. Many couples will have reached such an agreement and will have promised to submit it to the court and to ask for its incorporation in the event that either one of them seeks a divorce. 186 In those circumstances, the agreement should be identified in the complaint, and the prayer for relief should request its incorporation into the final decree of divorce. For a complaint based on a one-year separation in which the plaintiff seeks incorporation of the agreement of the parties, see Appendix 2-43.
Where the parties have not reached an agreement concerning the various issues in their marriage, the plaintiff will need to decide if the court should be asked to resolve all or some of those issues. If so, the issues that the plaintiff would like the court to determine must be pled in the com-plaint. 187 Appendix 2-44 illustrates a complaint based on a separation of one
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year, where no agreement between the parties has been reached and collateral issues are pled.
C. Adultery. A final decree of divorce may be granted based on proof of adultery. It also may be granted on proof of sodomy or buggery committed outside the marriage. 188 While other grounds for divorce may be proven by a mere preponderance of evidence, this ground requires "clear and convincing" evidence. 189 Specific allegations are particularly important in suits brought on the ground of adultery. While the name of the paramour does not need to be stated, the time, place, and circumstances should be set forth so that the defendant will be able to respond to the charge. 190 Allegations concerning the dates when the adulterous conduct took place are also important because a suit for adultery must be instituted within five years of the act alleged. 191 The issues raised in the pleadings will be more fully developed if counsel also pleads that the parties have not cohabited after the plaintiff learned of the adulterous conduct and the adultery was not procured by connivance.
In the section of the complaint where the ground for divorce is set forth, this ground should be pled as illustrated in Appendix 2-45A.
D. Felony Conviction and Confinement. A ground for divorce exists if, following the marriage of the parties, one of them is convicted of a felony, sentenced to confinement for more than one year, and confined following the conviction. The complaining spouse cannot cohabit with the spouse convicted of the felony and confined after learning of the confinement, and a pardon subsequently granted to the confined spouse will not restore conjugal rights to the confined spouse. 192
If a complaint based on this ground is...
