6.2 GROUNDS OF DIVORCE
6.201 In General.
To be entitled to a final divorce, known as a divorce a vinculo matrimonii, the complaint for divorce must allege a ground for divorce either based on fault grounds or on the parties' separation. The grounds for divorce must be "alleged and proved to have occurred before the bringing of the suit." 3340 The grounds for a final order of divorce a vinculo matrimonii are:
A. A separation of six months, if the parties have no minor children and have entered into a separation agreement; 3341
B. A separation of 12 months; 3342
C. Adultery, sodomy, or buggery committed outside the marriage; 3343
D. Felony conviction and confinement; 3344
E. Cruelty, or causing "reasonable apprehension of bodily hurt," after a period of one year from the date of the acts; 3345 and
F. Willful desertion or abandonment, after a period of one year from the date of the act. 3346
6.202 Grounds of Divorce—Separation of the Parties.
A. Separation for Six Months.
A divorce may be granted based on a separation of six months if (i) the parties have entered into a separation agreement and (ii) have no minor children. 3347 The separation must be one in which the parties have lived separate and apart without any cohabitation and without interruption for the required period before the pleading is filed. 3348 Additionally, at least one of the parties must have intended for the separation to be permanent at the time it commenced. 3349
B. Separation for 12 Months.
A final order 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, and at least one of the parties must have intended for the separation to be permanent at the time it commenced. 3350 Unlike a divorce based upon a six-month separation, there is no requirement that the parties reach an agreement resolving the various issues in the marriage before filing on these grounds.
C. Defenses Not Available.
Although it is still possible for an adverse party to plead one of the fault grounds in response to a separation-based filing, a plea of res adjudicata or recrimination that would be available with respect to a fault ground will not bar either party from obtaining a divorce based on one of the separation grounds. Additionally, the insanity of either party will not act as a bar to this type of filing, whether the competency issue is adjudicated before or after the period of separation has commenced. At the expiration of the one-year or six-month separation, whichever is applicable, the grounds for divorce would be complete, and the committee for the insane defendant, if there is one, should be made a party to the cause, or if no committee has been appointed, then the court must appoint a guardian ad litem to represent the insane defendant. 3351
D. Validity of Decrees
Section 20-91(A)(9)(b), dealing with divorce due to a separation of the parties, applies
whether the separation commenced prior to [the statute's] enactment or shall commence thereafter. Where otherwise valid, any decree of divorce hereinbefore entered by any court having equity jurisdiction pursuant to this subdivision . . . , not appealed to the Supreme Court of Virginia, is hereby declared valid according to the terms of said decree notwithstanding the insanity of a party thereto. 3352
6.203 Grounds of Divorce—Fault Based.
A. In General.
When a divorce is filed on a fault ground, a statutory waiting period can generally be avoided. Virginia's version of a "no-fault" divorce requires at least six months to a year to pass before the divorce can be filed, so a client who needs immediate access to the courts to obtain temporary support or for other reasons may want to pursue a filing based on one of the fault grounds.
B. Adultery.
A divorce may be granted based on proof of adultery. It also may be granted on proof of sodomy or buggery committed outside the marriage. 3353 Specific allegations are particularly important in suits brought on the ground of adultery. Although other grounds for divorce may be proven by a mere preponderance of evidence, adultery requires "clear and convincing" evidence. 3354 Allegations concerning the dates, the places, and with whom the adulterous conduct occurred are very important because a suit for adultery must be instituted within five years of the act alleged. 3355 While it is rarely if ever prosecuted, adultery remains a misdemeanor offense in Virginia, and parties may generally invoke the Fifth Amendment and refuse to answer questions regarding adultery, both at trial and in the discovery phase. Judges are now permitted to draw an adverse inference against a party who refuses to answer the question on Fifth Amendment grounds when asked about adultery, 3356 although as of this writing the application of the 2020 change to the relevant statute has not yet been addressed by the Court of Appeals.
Although a finding of adultery may bar a spouse from receiving spousal support and could influence the division of marital property, the additional expense and uncertainty of proving that the adultery took place may not warrant pursuing this ground in all cases. A client may want to file on this ground because he or she is upset with the other spouse, but ultimately it may not be in the client's best financial interests. Counsel should explain to the client that it takes a great deal of time and effort to prove an adultery case, which will ultimately increase the client's attorney fees and costs and cause a case to become unnecessarily adversarial.
At the same time, the Court of Appeals has issued recent decisions indicating that adultery is truly a bar to receipt of permanent spousal support. Counsel must seriously consider exploring the adultery issue if alimony is an issue in the case.
C. Felony Conviction and Confinement.
A divorce may be granted if, after the marriage of the parties, either spouse is convicted of a felony, sentenced to confinement for more than one year, and confined after the conviction. The complaining spouse cannot cohabit with the spouse convicted of the felony and confined after learning of the confinement. A pardon granted to the confined spouse does not restore conjugal rights to the confined spouse. 3357
D. Cruelty.
A divorce may be granted based on "cruelty [or] reasonable apprehension of bodily hurt" after one year has elapsed since the acts occurred. 3358 Acts of physical violence and conduct that endanger the life, safety, or health of the plaintiff constitute cruelty. 3359 Although cruelty is often shown by a succession of acts, a single act of cruelty can be sufficient if it is a very serious act. 3360 Where a spouse drinks alcohol to excess, cruelty is not shown unless it is coupled with other misconduct. 3361 As with a filing for adultery, these allegations can be very difficult to prove because the evidence must be corroborated. Usually these incidents only involve the parties. 3362
In addition, legally sufficient cruelty—that is, cruelty sufficient to support a cause of action for divorce on these grounds—almost always involves some element of physicality. Even with growing awareness of the cycle of domestic violence, and with the understanding that a mere threat can control an abuse victim, counsel should think carefully before filing on cruelty grounds.
E. Desertion or Abandonment.
A divorce may be granted on the ground of willful desertion or abandonment after one year has elapsed since the act occurred. 3363 There must be proof of (i) the actual breaking off of the matrimonial cohabitation and (ii) an intent to desert in the mind of the offender. 3364 Both are required. Desertion does not occur when the parties mutually consent to a separation. 3365 "Constructive desertion" may be found where the cruelty of the other party justifies the other spouse's decision to discontinue marital cohabitation, but this is generally seen as a defense, or justification for leaving the marriage. 3366 Counsel are advised to avoid filing for divorce on the grounds of constructive desertion, lest they subject themselves to a demurrer or other defensive pleading.
6.204 Defenses to Divorce Actions.
A. In General.
A divorce can be barred by a variety of procedural defects or doctrines. The court may lack jurisdiction to grant a divorce if neither party satisfies the residence and domicile requirements. 3367 The court may lack jurisdiction over the defendant and not be permitted to grant certain forms of relief if, for example, there is a failure of service of process. 3368 When the court has jurisdiction over the cause, a divorce may be barred if no valid marriage can be proven, for example, when one party is guilty of bigamy. 3369 The doctrine of res judicata may bar a fault-based divorce, 3370 although res judicata is not a defense to a divorce based on the separation of the parties. 3371 Finally, when a divorce has been granted, the judgment may be attacked based on fraud 3372 or on lack of notice pursuant to section 8.01-322 of the Virginia Code.
B. Cohabitation After Knowledge of Adultery.
It is an absolute defense to a divorce alleging adultery, sodomy, or buggery if the parties voluntarily cohabited after knowledge of the facts leading to the allegation. 3373
C. Five-Year Statute of Limitations.
It is an absolute defense to a divorce alleging adultery, sodomy, or buggery if the actions occurred more than five years before the divorce action is brought. 3374
D. Condonation.
3375 Condonation occurs when the injured party knows of the marital offense and freely consents to the restoration of marital rights. This is usually evidenced by a resumption of cohabitation or sexual intercourse. Condonation should be pled as an affirmative defense. 3376 However, even when condonation is not pled as a defense, the court may deny a divorce when the evidence shows that the plaintiff...
