Filing for Divorce in Virginia With Adultery & Abandonment
By Bernadette A. Safrath
When spouses decide to end their marriage in Virginia, they can file for no-fault or fault divorce. A fault divorce means that one spouse committed some type of marital misconduct leading to the end of the marriage. Two grounds for a fault divorce are adultery and abandonment. Not only does such misconduct give spouses the right to divorce, it is also considered when a court divides marital property or determines whether a spouse is eligible for alimony.
Spouses are eligible for divorce in Virginia if they meet the residency requirements. Virginia requires that at least one spouse be a state resident for six months prior to filing. To begin the process, one spouse must file a Complaint for Divorce in a circuit court, family court or domestic relations court located in either spouse's county of residence. The complaint must state valid grounds for divorce.
Virginia recognizes divorce based on adultery. Adultery is the act of having a sexual relationship with someone other than your spouse. In order for a court to grant a divorce because of one spouse's adultery, the filing spouse must provide evidence of the other spouse's misconduct. The filing spouse's accusation must be corroborated by another witness or some other evidence from which the inference of adultery can be drawn, such as photographs or charges from a hotel. Additionally, the court requires that the spouse requesting the divorce be innocent. This means that if both spouses committed adultery, a divorce cannot be granted based on that ground.
Abandonment, also called desertion, is the act of leaving the marriage with no intent to return. Virginia requires that the abandonment be "willful and malicious" for a period of one continuous year and there is no chance of reconciliation. Actual abandonment is the act of leaving the marital residence. Constructive abandonment is the act of withholding sexual intercourse despite the ability to perform and requests to do so.
Property and Alimony
The court considers the circumstances leading to divorce when dividing marital property or awarding alimony. In Virginia, property is divided based on "equitable distribution," which means each spouse is awarded a fair percentage of the assets. However, if one spouse used marital assets to carry on an adulterous affair or fund his lifestyle after abandoning the other spouse, the court may award a large percentage of the property to the innocent spouse. Additionally, if a spouse is seeking alimony because she is financially weaker than the other, she may forfeit the right to alimony or receive a decreased award based on misconduct. Alternatively, the spouse who committed adultery or abandonment may be ordered to pay additional alimony as reimbursement for any marital assets misused during the period of adultery or abandonment.
Bernadette A. Safrath is an attorney who has been writing professionally since 2008. Safrath was published in Touro Law Center's law review and now writes legal articles for various websites. Safrath has a Bachelor of Arts in music from Long Island University at C.W. Post, as well as a Juris Doctor from Touro College.