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The Great Escape: Grounds for Divorce in Virginia

By Laura Marks O’Brien


While handling a divorce from start to finish can involve many details and intricacies, the first step is essential: determining grounds for divorce pursuant to section 20-91 of the Code of Virginia.


By far, most divorces in Virginia are granted on no-fault grounds. Although many individuals often colloquially say that his or her divorce is due to “irreconcilable differences,” such grounds do not actually exist in Virginia. However, a no fault divorce is typically based upon irreconcilable differences between the parties. If the parties have a minor child (meaning under 18 years), a party cannot file a complaint for a no-fault divorce until the parties have been separated for a minimum of one year.


How does the court define a separation? The parties must be living separate and apart, without cohabitation and without interruption, for a continuous period of one year or more. Such a separation can be accomplished although the parties continue to reside under the same roof, so long as the parties maintain separate living quarters within the residence and refrain from participating in activities in which married couples would typically engage, such as eating daily meals together, doing laundry for one another, and presenting themselves as a married couple to friends and family. Prior to the entry of a final order of divorce, the court requires an independent witness to testify (either by ore tenus testimony, deposition, or affidavit) of his or her knowledge corroborating the separation.


Where there are no minor children, a party can file a no-fault complaint on the grounds of a six-month separation, but only where the parties have executed a marital settlement agreement that resolves all issues (including support and the division of property and debts, known as equitable distribution), so that there are no substantive issues remaining for the court’s determination.


Fault-based grounds consist of adultery, cruelty, desertion (also referred to as abandonment), and constructive desertion, or any combination of such. Unlike a no-fault complaint, which can only be filed after the requisite one-year or six-month separation period, a fault based complaint can be filed at any time; no waiting period is required.


When filing on the grounds of adultery (sexual relations with any person who is not his or her spouse); sodomy (anal or oral copulation with any person who is not his or her spouse), or buggery (sex with animals—yes, this is actually a real grounds for divorce) pursuant to section 20-91(A)(1), such acts must be pled with specificity in order for the complaint to survive a potential demurrer. The filing party should allege as much information surrounding the adultery as is known, including the name of the paramour and specific dates and locations where the acts of adultery occurred. A court can grant a divorce on the grounds of adultery at any point after the adulterous acts have occurred, but such must be proven by clear and convincing evidence, which often requires corroborating evidence from a private investigator or the admission or testimony of the paramour.


Under section 20-91(A)(6), a court can grant a divorce on the grounds of cruelty or desertion no earlier than one year from the date of such act. Again, any complaint for divorce must allege these acts with specificity. Acts of cruelty must meet a stringent standard; for instance, verbal and mental abuse will not typically suffice, as the Code defines cruelty as “causing reasonable apprehension of bodily hurt.” Typically, but not always, cruelty must involve an act of physical violence that places the innocent party in imminent fear of injury or death. See Myers v. Myers, 83 Va. 806 (1887); Haynor v. Haynor, 112 Va. 123 (1911). However, the Virginia Supreme Court has found cruelty to exist in exceptional cases of mental anguish and repeated humiliation. See Ringgold v. Ringgold, 128 Va. 485 (1911).


Desertion occurs where a party breaks off cohabitation without the consent of the other, so long as such desertion is not legally justified. See Brawand v. Brawand, 1 Va. App. 305 (1986). Desertion is considered a breach of matrimonial duty and is composed of two prongs: (1) the breaking off of matrimonial cohabitation; and (2) an intent to desert in the mind of the offender. Zinkham v. Zinkham, 2 Va. App. 200 (1986). Desertion typically occurs where one spouse moves out the marital residence without the consent of the other, although desertion has been found where the parties continue residing under the same roof, so long as the deserting party has willfully withdrawn from the duties of the marital relationship without just cause or excuse. See Chandler v. Chandler, 132 Va. 418 (1922).


Constructive desertion is often pled in combination with cruelty, or less commonly, adultery, and occurs where the non offending spouse is legally justified in deserting the marital residence, because the offending spouse’s conduct “creates conditions so intolerable that the other spouse cannot reasonably be expected to remain in the home.” Lee v. Lee, 13 Va. App. 118 (1991). Courts have held that the desertion is only legally justified where a party holds a reasonable belief that his or her health and well-being were endangered by remaining in the household. See Brawand v. Brawand, 1 Va. App. 305 (1986).


Finally, less prevalent is the “felony ground,” which allows a divorce to be granted where either of the parties subsequent to the marriage has been convicted of a felony, sentenced to confinement for more than one year, and confined for such felony subsequent to such conviction, and cohabitation has not been resumed after knowledge of such confinement.


Laura M. O’Brien is an associate with Kelly Byrnes & Danker, PLLC. She can be reached at