There are three principal players involved in your marriage that will also be involved in your divorce: you, your spouse, and the Commonwealth. You cannot simply break up, saddle your charger, and ride off into the sunset. Among other legal considerations, you have to give the Commonwealth an acceptable reason why you should be allowed to break up. The reason is known as the ground for your divorce. Over the years each state has enacted legislation that governs acceptable grounds.
There are different grounds for a divorce, separation, and annulment. In the case of an absolute divorce, there are five (5) grounds for a court to grant an absolute divorce:
- Adultery, Sodomy, Buggery. No specific waiting period if residency requirement has been fulfilled.
- Felony Conviction. At least one year imprisonment.
- Cruelty. One year of separation for such act. Cruelty that will support a divorce is anything that tends to cause bodily harm and renders cohabitation unsafe or that involves danger to life, the person, or health. A single act of cruelty will not support divorce on this ground.
- Desertion. One year of separation for each act.
- Voluntary separation. Either six months with a valid separation and no minor children agreement, or one year if there is no agreement or you have minor children.
Any one of these grounds, if proved, will result in the complete dissolution of the marriage (look to each ground in order to find out how to prove that ground). You can file for divorce under more than one ground: for instance, adultery and desertion.
In the case of a limited divorce, there are four (4) grounds for a court to grant a limited divorce:
- Cruelty (against the child of the complaining party and/or against the complaining party);
- Reasonable apprehension of bodily hurt;
- Desertion (construction and actual);
- Willful abandonment
Limited divorces are usually based on either willful desertion or cruelty. Although any one of these grounds is enough for a limited divorce, a limited divorce will not completely terminate your marital status. In order to do so you must either seek an absolute divorce or an annulment.
In Virginia there are two types of annulment. In the first type the marriage is declared void ab initio, or from its inception, as though it had never existed. You do not legally have to go to court to have the marriage declared void ab initio, although it’s a good idea to do so. In the case of an annulment, a marriage must be “totally void” in order for it to be considered annulled.
There are two characteristics of a “totally void” marriage:
- The marriage posses some defect rendering it susceptible to collateral attack (some evidence that shows the marriage never happened or should have never happened)ven after the death of one or both spouses; and
- No direct step or proceeding to annul is necessary (although the latter may be desirable).
One such defect is if your spouse was formally married to someone else and still has not divorced that person. Your marriage to this spouse is considered totally void. The grounds for a void marriage are bigamy, marriage between an ancestor and a descendant, brother and sister, aunt and nephew, and uncle and niece.
In Virginia, the grounds for voidable annulments of marriage are bigamy; impotency at the time of marriage; conviction of a felony prior to marriage, but not discovered until after; the wife’s pregnancy at the time of the marriage with someone else’s child-a fact unknown to her husband; the husband’s siring of a child by another woman within ten months after the marriage; or the party’s having been (without the knowledge of the other) a prostitute before the marriage. If either party is under the age of consent (16 years old) the marriage may be declared void by the court. Most annulments also can be obtained before the expiration of two years after the marriage ceremony in most cases. If you want an annulment, move quickly. Although annulments may be granted, the preference of the court is not to annul, but for the parties to divorce. Also, any marriage that is expressly prohibited by statute is void by annulment.