Until the 17th century, the only divorce was a divorce from bed and board given by the ecclesiastical (church) courts into a spouse upon proof of desertion or abuse. This kind of divorce did not dissolve the union or allow for remarriage thereafter. Only death dissolved the bond of marriage.
In England, following the reign of Henry VIII, an absolute divorce dissolving the bond of matrimony and permitting remarriage could only be obtained with a special act of Parliament https://divorceinfloridaonline.com. In Virginia, courts had no power to grant divorces. Persons seeking divorce needed to petition the legislature.
It was not till 1841 that an absolute divorce letting remarriage became obtainable via a judicial proceeding in Virginia. Thereafter over time, additional grounds for divorce were allowed.
The initial intent of this statute was to recognize in legislation those marriages which had ceased to exist in reality. Thereafter the separation interval has been gradually decreased to as low as half an hour. It is hard to understand that divorce has been quite limited worldwide, particularly in predominantly Catholic countries.
Film buffs might remember that there’s a classic movie entitled”Divorce Italian-Style” from the 1960s where a man is trying to murder his wife because he cannot divorce her so he can remarry.
Why You Want a Lawyer
Because there is no historical basis for common law divorce, it’s a creature of statute. This usually means that the statutory requirements have to be followed in every detail. Unless you’re familiar with the laws and procedures regulating divorce in your state, you need to maintain a fantastic family law attorney.
In fact, even if you are somewhat familiar with the laws and processes governing divorce, psychological worries and anxiety related to divorce and separation makes it hard for individuals to make sound choices. If our are confronting these decisions, you need to maintain an experienced family law attorney to advise and counsel you. For a more comprehensive rationale see my post entitled”Why You want a Divorce Lawyer” readily available for free download for individual use through this site.
Grounds for Divorce (In Virginia); Different Types of Divorce
There are two types of divorce in Virginia. A bed and board decree is a qualified divorce where the bond of union isn’t entirely dissolved. Under this kind of divorce, the court decrees that the husband and wife are to live perpetually separate in their own persons and property. They are divorced for most purposes, but the marriage bond is not totally severed.
Neither party is free to marry another person or to engage in sexual relationships with someone else. Such a subsequent marriage would be bigamous and such connections could constitute adultery. On the other hand, in the event the couple must reconcile and resume cohabitation, they may request the court to dismiss the divorce. The other sort of divorce, a divorce from the bond of matrimony, dissolves the bond of marriage and re-establishes the person as solitary as the party may marry again.
Must Prove Grounds
Even if both husband and wife agree on a divorce, grounds or prescribed reasons must exist and be proven to the satisfaction of the court.
Desertion is a unilateral cessation of cohabitation with intent to remain apart forever in the brain of the offender. Separation by mutual consent is not desertion. Leaving the marital residence for a weekend or a long weekend with the goal to return isn’t desertion. On the flip side, if a spouse is forced to leave by the cruel acts of another, he or she is not guilty of desertion and might be granted a divorce on the ground of cruelty. If a partner has been justified in leaving the marriage, he is not guilty of desertion.
Acts that tend to cause bodily injury and leave cohabitation unsafe constitute the earth fo cruelty. If the conduct of a spouse is so eccentric as to harm or endanger the mental or physical wellbeing of the other partner, this may amount to cruelty sufficient to establish grounds for divorce.
The grounds for an absolute divorce dissolving the bond of matrimony are located in Virginia Code §20-91. The grounds include adultery; sodomy or buggery committed beyond their union; desertion for a year or two cruelty followed by a yearlong separation; during the marriage, 1 party has been convicted of a felony and sentenced to more than one year and restricted subsequent to the conviction.
And there’s been no cohabitation after knowledge of the confinement; dividing with the intention of staying apart permanently and staying apart for one year or longer, or in the event, there are no minor children born or adopted by the parties and the parties have entered into a written property settlement six weeks.
Proving Adultery/Defending Adultery
Adultery happens when”any individual, being married, voluntarily has sexual intercourse with any person not his or her partner.” VC §18.2-365 The proof of adultery shouldn’t be”eyewitness” testimony and may be circumstantial.
Proof of adultery must be”clear and persuasive.” This is the maximum standard of evidence in civil law. The court has said the evidence must be”rigorous, satisfactory and conclusive.” Suspicious circumstances aren’t enough. Even though most instances must be built from circumstantial evidence, the circumstances must be such as to”lead the protected discretion of a fair and just man to a conclusion of guilt.”
Sexual acts other than intercourse, such as oral or anal intercourse can also form the reasons for divorce if committed outside of marriage. The standard of evidence is exactly the exact same as adultery. Defenses to a promise of adultery comprise condonation or forgiveness of the action by cohabitation after knowledge of their action, and procurement or connivance by encouraging or creating the act possible or entrapping the spouse.
Where this is revealed, no divorce will be granted on this earth. The petitioning spouse has to be innocent of such wrongdoing. Impotency is another defense to this ground. There’s also a five-year statute of limitations; like the act must have occurred within five years of the petition for divorce.
If throughout the marriage, a partner is convicted of a felony and sentenced o the penitentiary for over 1 year and is actually confined, the other spouse has grounds for divorce, provided he or she doesn’t resume cohabitation with the guilty spouse after knowledge of their conviction and confinement.
The court isn’t required to grant a divorce on the grounds of separation to the statutory period to the exclusion of other fault grounds for divorce. On the flip side, even if error grounds are alleged, even in the event the parties have been separated to the statutory period, the court has discretion to award a divorce on the grounds of separation for the statutory period.
VC §20-121 allows either party a divorce on the ground of separation for the statutory period without filing amended pleadings. In other cases the interval would be one year.
Intent is Essential
There has to be a goal to remain apart permanently in the beginning of this period of separation. This goal must also be conveyed to the other partner. Virginia does not prefer divorce by ambush and won’t recognize or allow extended separations required for reasons aside from divorce to ripen into”instant divorce.”
The separation period is meant to give the parties time to contemplate carefully their actions in the dissolution of their marriage. Actually, in many cases, it has grown into a very”easy out” for a disgruntled spouse who has no legitimate reason to divorce.