What are the grounds of divorce?
Before you file a lawsuit for divorce you must have one of the statutory grounds of divorce. In Virginia, there is one "no-fault" ground and four "fault" grounds.
The no-fault ground of divorce is separation. If you have minor children, you must live separate and apart from your spouse for at least 12 months and one of you must intend for your separation to be a permanent one. If you have no minor children, and you and your spouse resolve your property and support issues in a written agreement, then you can file for divorce after you have been separated for 6 months.
The four fault grounds of divorce: adultery, desertion, cruelty and conviction of a felony, have different waiting periods:
Adultery: is any kind of sexual relationship outside of the marriage. There is no waiting period associated with a suit for adultery, and you can file as soon as you become aware of the adultery. However, the standard of proof for adultery is higher than for the other grounds of divorce and you must have more than mere suspicions to file suit. You must also be careful not to condone your spouse's infidelity by living together as husband and wife after you have knowledge of the adulterous behavior or you may lose your right to sue based on adultery.
Desertion: is where one party breaks off the marital cohabitation by moving out of the marital home with the intention for the separation to be permanent. If this happens to you, you can file your divorce suit based on desertion, but the divorce cannot become final until 12 months after the date of desertion.
If you leave the marital residence because you fear for your physical safety or your emotional well-being, or the physical safety or emotional well-being of your child, then your leaving may be legally justified. If you leave under these circumstances, you can sue your spouse for divorce based on constructive desertion immediately, but the divorce can not become final until 12 months after the desertion.
Cruelty: If your spouse attacks you physically, causes you to reasonably fear for your safety, or treats you with such emotionally abusive behavior that continuing your marriage would be intolerable, then you may sue for divorce based on cruelty. However, like desertion, the divorce can not become final for 12 months from the date of the most recent act of cruelty.
Conviction of a Felony: If your spouse is convicted of a felony during your marriage and sentenced to confinement for more than one year and actually imprisoned after the conviction, you may sue for divorce based on the conviction. There is no waiting period associated with this ground of divorce.