When Can I File for Divorce?

Litigants in Virginia must establish grounds for divorce before the court will dissolve a marriage, so litigants may file for divorce once those grounds have accrued. The Code of Virginia provides four distinct categories of grounds for divorce. A spouse may start divorce proceedings once s/he has a good faith basis to allege any of the following:

  1. Adultery

The term ‘adultery’ has a specific meaning in this context. A litigant can sue for divorce on the grounds of adultery when his or her spouse has had physical relations with someone outside of the marriage. There is a high burden of proof to establish adultery at trial; however, that burden does not apply to the initial pleadings. To begin the divorce proceedings alleging acts of adultery, the litigant needs a good faith basis for making the allegations.

There is a defense to an allegation of adultery besides denying it occurred. Very simply, if the injured spouse has forgiven or acquiesced to the adultery, that adultery cannot provide a ground for the divorce. A family law attorney can help you determine whether this defense might apply and whether you should consider filing on additional or alternative grounds.

Many clients ask about romantic relationships after the parties have begun living separate and apart. Any adulterous acts prior to the final dissolution of a marriage are potentially grounds for divorce and may impact the availability of spousal support. Before engaging in a new relationship prior to a final decree of divorce, you should consult a family law attorney to discuss the potential impact on your case.

  1. Felony Conviction

A spouse may be awarded a divorce from the bonds of matrimony when, after the marriage, either spouse has been convicted of a felony, sentenced to confinement for more than one year and has been confined for that felony offense. However, if the parties resume a marital relationship after knowledge of the confinement, the conviction can no longer serve as a ground for a divorce. A party seeking a divorce on the basis of a felony conviction may file as soon as he or she has knowledge of the confinement.

  1. Cruelty, Intimidation, Desertion and Abandonment

If one spouse is guilty of cruelty, has caused reasonable apprehension of bodily hurt, or has willfully deserted or abandoned the other, the innocent spouse may file for divorce. The divorce cannot be completed until one year after such an act of cruelty, an act causing reasonable apprehension of bodily harm, or willful desertion or abandonment. If you are concerned for your physical safety, or that of your family members, you should call the police immediately.

  1. Living Separate and Apart

Any spouse may file for divorce one year after the parties have begun living separate and apart without any cohabitation and with the intention that the separation be permanent. If there are no minor children of the marriage, and the parties have entered into a separation agreement, either spouse may file for a final divorce after a 6-month period of separation.

Very often, the separation date is the day that one spouse moved out of the marital home. Particularly in difficult financial times, however, some families cannot afford to maintain two households during the separation. The court will award divorces based upon separations that include time where the parties were separated under the same roof; however, the courts will scrutinize these separations more closely than others. You should proceed very carefully if you and your spouse intent to separate under the same roof. A family law attorney can help you determine what practices you and your spouse should put in place so that the court might approve your separation.

If either party has filed for a divorce on other grounds, the court can nonetheless award a divorce based on a 1-year separation so long as the parties have been separated for a year on the date of the final decree. Neither party may file on a separation, however, until the parties have already been separated for the applicable period.


What Do I Do in the Meantime?

If you have not separated from your spouse and anticipate that you will need to wait out a separation period before filing, you still have options to settle many of your affairs with your spouse. You may consult with a family law attorney at any time to learn about your likely rights and responsibilities at divorce. Many people use that information to negotiate a settlement agreement with their spouse. Properly executed agreements are binding contracts between the parties even before a divorce action is filed.

Unfortunately, settlement is not always an option. During a marriage, parties can get relief regarding custody and support from the Juvenile and Domestic Relations District Court. The J&DR court will not address the division of marital assets, though. The conduct of the household finances before and during a separation can have large effects on the status of the marital estate at divorce. A family law attorney can advise you about your options before and during your separation, as well as after the divorce action is filed.


Jennifer L. Fuschetti, Associate
Christie, Kantor, Griffin & Smith, P.C.


Please note: All information is current only as of the date of publication and applies only in Virginia unless specifically stated otherwise. This article is not intended to convey legal advice. Please consult an attorney in the relevant jurisdiction for advice regarding your situation.