Grounds for Divorce

Virginia law recognizes two types of divorce: divorce from bed and board (a mensa et thoro) and a divorce from the bond of matrimony (a vinculo matrimonii). A divorce from bed and board is a partial or qualified divorce under which a husband and wife are legally separated from each other but are not permitted to remarry. A divorce from the bond of matrimony is a complete and absolute divorce. Any person granted a divorce from bed and board may ask the court to “merge” the decree into a divorce from the bond of matrimony after at least one year has passed from the date the parties originally separated.

The law requires that “grounds” (valid reasons for divorce prescribed by law) for divorce must exist and be proven to the court even if the husband and wife agree that a marriage should end. These grounds are briefly described below:
I.  Divorce from Bed and Board
a. Willful desertion or abandonment
Desertion or abandonment requires both the breaking off of cohabitation and an intent to desert in the
mind of the offender. A mere separation by mutual consent will not be considered desertion by either
spouse. Further, if one spouse leaves because the other has committed acts that legally amount to
cruelty, then the spouse who leaves is not guilty of desertion. In fact, the spouse who leaves may be
awarded a divorce on the ground of cruelty or constructive desertion.
If desertion grounds exist, a suit for a divorce from bed and board may be filed with the court
immediately after the separation. If the desertion continues for more than one year from the date the
parties originally separated, then the desertion is sufficient to constitute a ground for divorce from the
bond of matrimony.

b. Cruelty and reasonable apprehension of bodily harm
Cruelty authorizing divorce requires acts that tend to cause bodily harm and render the spouses' living
together unsafe. Mental cruelty alone is not normally a ground for divorce in Virginia. However, if the
conduct is such that it affects and endangers the mental or physical health of the divorce-seeking
spouse, it may be sufficient to establish grounds for divorce.
Cruelty constitutes the basis for a divorce from bed and board and can be filed immediately after the
parties separate. After one year has elapsed from the time the act(s) of cruelty were committed,
grounds will exist for a divorce from the bond of matrimony.

II.  Divorce from the Bond of Matrimony

a. Separation divorce—the “No Fault” divorce

While grounds for divorce traditionally implied misconduct by one or the other spouse, modern
divorce laws do not require “fault” grounds for a divorce to be granted. A “no fault” divorce from the
bond of matrimony may be awarded upon a showing that for more than one year the husband and
wife both intended to and have continuously lived separate and apart without any cohabitation. If the
husband and wife have entered into a Property Settlement or Separation Agreement and there are no
minor children, the time period is reduced from one year to six months.
Although separation provides a “faultless” ground for divorce, fault may still be an issue when spousal
support (alimony) is being sought. Further, a judge is free to award a divorce on fault grounds even
though “no fault” separation grounds exist.

b. Adultery, sodomy, or buggery
Proving adultery is very fact-specific. The evidence must be strict, satisfactory and conclusive that
the other spouse did in fact engage in sexual relations with another person. While there must be some
corroboration of the testimony of a spouse to prove adultery, “eyewitness” testimony as to the
adulterous acts is not required. In fact, most cases of adultery are proven without eyewitness
testimony by using other evidence of the circumstances involved. Sodomy is a sexual act, other than
intercourse, such as oral or anal sex. To be grounds for divorce, it must be committed with someone
outside the marriage. Buggery is bestiality or a sexual act against nature. The standard of proof for
these grounds is the same as that for adultery.

The “guilty” spouse has a number of “defenses” to the charge of adultery, sodomy or buggery. If the
guilty spouse can successfully establish any one of these defenses, then a divorce will not be awarded
on these grounds.

Defenses include:
•         Condonation. The innocent spouse has “condoned” or legally forgiven the offending
  behavior by voluntarily cohabiting with the guilty spouse after learning of the
  adultery, sodomy or buggery.
•         Procurement/Connivance. The innocent spouse has actively encouraged or
  facilitated the other spouse in committing the adultery, sodomy or buggery.
•         Recrimination. Proof that the accusing spouse is also guilty of one of the “fault”
  grounds for divorce.
•         Time Barred. If the adultery, sodomy or buggery occurred more than five years
  before bringing of the suit for divorce, then a divorce will not be granted on these

c. Conviction of a felony

If the husband or wife has been convicted of a felony, sentenced to confinement for more than one
year and is in fact confined, then the other party has grounds for a divorce from the bond of
matrimony as long as he or she does not resume cohabitation with the guilty spouse after knowledge
of the confinement.

This information is not legal advice and is provided for informational purposes only