Beginning on July 1, Virginia spouses can file for a “bed and board” divorce as early as one day after officially separating. This allows them to begin the process of negotiating or litigating the terms of their divorce.
Currently, under the law, “a divorce from bed and board may only be decreed for cruelty, reasonable apprehension of bodily hurt, willful desertion, or abandonment.” Otherwise, a couple has to be officially separated for a minimum of a year before filing for a “no-fault” divorce.
While this typically involves living in separate homes, couples aren’t required to do so as long as they attest that they are separated. That separation period can become particularly contentious for couples who, for financial or other practical reasons, need to remain under the same roof. Regardless of the living situation, one divorce coach noted that “if you think about power dynamics…and any sort of tensions or triggers that you have during the marriage, those escalate times infinity when you are separated.”
Under the new law, couples with minor children still cannot finalize their divorce for a year. Those without minor children can do so after six months.
Changes to adultery grounds and possibly an end to fault-based divorce
The new law also amends the requirements for a fault-based divorce based on adultery. It states that a fault-based divorce may be sought only for “adultery that occurred prior to the date of the last separation of the parties,” as opposed to allowing adultery after separation to count.
Other grounds for a fault-based divorce include cruelty, desertion and the incarceration of a spouse for at least a year after conviction for a felony. Fault-based divorces don’t have mandatory separation periods. Another section of the new law orders the study of “the feasibility of transitioning the Commonwealth to an exclusively no-fault divorce system.”
The potential dangers of mandatory separation and waiting periods
The law also orders a study of “whether to modify or eliminate mandatory separation periods currently required under Virginia law as a precondition to no-fault divorce, with particular attention to the impact of such requirements on survivors of domestic violence and low-income Virginians” and “protections for domestic violence survivors in no-fault divorce proceedings….”
The process of separation and divorce can be a time of conflict and even volatility for some couples. It’s critical that any spouse who is concerned for their safety and well-being, or that of their children, take whatever legal steps are available to remain safe. Getting the guidance of an experienced family law attorney as early as possible can help.
