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Divorce is the ending of a marriage ordered by a court. In Virginia. No-Fault grounds for divorce: No-Fault: (1) living separate and apart without cohabitation for 1 year; or (2) living separate and apart without cohabitation for 6 months if there are no minor children and the spouses have entered into a separation agreement. [Code of Virginia; Title 20, Section 20-91].
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.
Grounds for Divorce in Virginia are:
(1) Adultery; or for sodomy or buggery committed outside the marriage;
(2) Where either of the parties subsequent to the marriage has been convicted of a felony, sentenced to confinement for more than one year and confined for such felony subsequent to such conviction, and cohabitation has not been resumed after knowledge of such confinement (in which case no pardon granted to the party so sentenced shall restore such party to his or her conjugal rights);
(3) Where either party has been guilty of cruelty, caused reasonable apprehension of bodily hurt, or willfully deserted or abandoned the other, such divorce may be decreed to the innocent party after a period of one year from the date of such act; or
(4) On the application of either party if and when the husband and wife have lived separate and apart without any cohabitation and without interruption for one year. In any case where the parties have entered into a separation agreement and there are no minor children either born of the parties, born of either party and adopted by the other or adopted by both parties, a divorce may be decreed on application if and when the husband and wife have lived separately and apart without cohabitation and without interruption for six months. A plea of res adjudicata or of recrimination with respect to any other provision of this section shall not be a bar to either party obtaining a divorce on this ground; nor shall it be a bar that either party has been adjudged insane, either before or after such separation has commenced, but at the expiration of one year or six months, whichever is applicable, from the commencement of such separation, the grounds for divorce shall be deemed to be complete, and the committee of the insane defendant, if there be one, shall be made a party to the cause, or if there be no committee, then the court shall appoint a guardian ad litem to represent the insane defendant.
[Code of Virginia; Title 20, Section 20-91].
Adultery is sexual intercourse between a married person and someone other than the spouse. In Virginia, neither cunnilingus nor fellatio, which the law defines as sodomy, is a ground for divorce and generally neither is considered adultery. The sexual intercourse must involve some penetration of the female organ by the male organ, but a "completion" of the sexual intercourse is not required.
There probably is no such thing as a pleasant adultery case; because names, dates, places, paramours, and the like have to be brought out in the open. If your spouse no longer cares about what you know and is open about the affair, you're lucky. You can then catch your spouse flagrante delicto, which means you have your spouse in the flagrant wrong and may not have to worry about hiring detectives. However, you may still need a detective to prove your case in court. There is still a need for a corroborative witness, such as a mutual friend or neighbor, who has no stake in the matter except telling the court what he (she) witnessed.
Most adultery cases are proven by circumstantial evidence, which means that you have to establish that your spouse had the disposition and opportunity to commit adultery.
Public displays of affection, such as hand-holding, kissing, and hugging, between the guilty spouse and the paramour are generally sufficient evidence to indicate an adulterous disposition. Opportunity may be proven by showing that your spouse was seen entering the paramour's apartment at 11 P.M. and not coming out until 8 A.M. the following morning and that they were alone. If you can only prove disposition but not opportunity, the courts may not allow your divorce because the court may reason that it is just mere speculation. The same is true if you only show that there was opportunity, but cannot prove disposition. When you think about it, this seems to make sense.
Sometimes known as a paramour, the co-respondent is the person whom you charge as having committed adultery with your spouse. The co-respondent has the right to hire a lawyer and file an answer to your complaint. Naming co-respondents can get sticky, particularly if your facts are incorrect. You might be damaging the reputation of an innocent person.
Adulterers are not equal under the blanket of the law. In Virginia, adultery may impact custody if the adultery is proven to have harmed or impaired the children. Adultery does not necessarily affect alimony awards in Virginia. It will, however, be a factor for consideration in awarding alimony.
Generally, if you knew your spouse committed adultery but continued to live and cohabit with your spouse, then adultery cannot be used as a ground. Once you resume marital relations, after you learned of the adulterous act, the courts feel that you have forgiven, or "condoned," the act. But, if your spouse starts having affairs again, you can then sue on grounds of adultery. Or, if your spouse has had several affairs and you knew of and condoned only one, you may file on adultery regarding the newly discovered affairs.
In Virginia, however, condonation does not necessarily bar the action for divorce; it now only a "factor for consideration."
If your spouse has been convicted-not simply charged-of a crime, that is a ground for divorce in Virginia. The conviction can be for either a misdemeanor or a felony in any state, and the spouse has to serve at least 12 months of a minimum three-year sentence in a penitentiary or penal institution.
