Generally, a party initiates a divorce proceeding by filing a Complaint in the Circuit Court. Furthermore, the divorce will be either contested or uncontested.
If the parties have a separation agreement, which resolves all the issues incidental to the divorce, the divorce action will generally be deemed uncontested. Additionally, if there are no minor children born of the marriage, born of one party and adopted by the other, or adopted by both parties, the divorce may be obtained after a six-month separation. However, if there are minor children born of the marriage, born of one party and adopted by the other, or adopted by both parties, the husband and wife must be separated for twelve-months before a divorce may be obtained. Conversely, if one issue is unresolved or all issues are unresolved, the divorce generally will be contested.
In Virginia, individuals may obtain a Bed and Board Divorce (Divorce a Mensa Et Thoro) or Absolute Divorce (Divorce a Vinculo Matrimonii). A Bed and Board Divorce may be based on cruelty or apprehension of bodily hurt, willful desertion or abandonment, or constructive desertion.
In a Bed and Board Divorce, the Court can decree that the parties shall be perpetually separated and protected. However, neither party can remarry during the life of the decree. Finally, the Bed and Board Divorce may be merged into an Absolute Divorce unless the cause for the Absolute Divorce existed and known to the party applying for the Absolute Divorce before the Bed and Board was entered.
An Absolute Divorce may be obtained for adultery, sodomy, or buggery, if one party is convicted of a felony and sentenced to a term of incarceration greater than one-year and cohabitation has not resumed after knowledge of such period of confinement, cruelty or desertion, or the parties having separated and lived apart for a period greater than one-year.
