11.3 Divorce

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

11.3 DIVORCE

11.301 Domicile and Residential Requirements. ¹¹

A. Generally. Suits for annulment or divorce are only permissible if one of the parties is and has been an actual bona fide resident and domiciliary of Virginia for at least six months before the filing of the suit.

B. Provisions for Members of the Armed Forces. As stated in Va. Code § 20-97:

If a member of the armed forces of the United States has been stationed or resided in this Commonwealth and has lived for a period of six months or more in this Commonwealth next preceding the filing of the suit,

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then such person shall be presumed to be domiciled in and to have been a bona fide resident of this Commonwealth during such period of time.

. . .

Any member of the armed forces of the United States or any civilian employee of the United States, including any foreign service officer, who (i) at the time the suit is filed is, or immediately preceding such suit was, stationed in any territory or foreign country and (ii) was domiciled in the Commonwealth for the six-month period immediately preceding his being stationed in such territory or country, shall be deemed to have been domiciled in and to have been a bona fide resident of the Commonwealth during the six months preceding the filing of a suit for annulment or divorce.

The Servicemembers Civil Relief Act ¹² permits active military service personnel to stay or continue any divorce-related proceedings when the service member is not present in the forum due to his or her military service. There are exceptions for certain issues.

11.302 Grounds for Divorce.

A. Adultery.

1. Post-Separation Adultery. In some circumstances, post-separation adultery by a nondeserting spouse may give the deserting spouse grounds to obtain a divorce based on adultery. However, if both spouses commit post-separation adultery, the doctrine of recrimination will bar either from obtaining a divorce based on adultery. ¹³

2. Defenses.

a. Condonation. ¹⁴ Condonation is conditional forgiveness. Cohabitation after knowledge of the adultery amounts to condonation. ¹⁵

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The adultery ground for divorce, however, is revived if the guilty spouse resumes the adulterous relationship. ¹⁶

b. Statute of Limitations. ¹⁷ If the adultery occurred more than five years before the institution of the suit, it is barred.

c. Connivance. ¹⁸ "Connivance is the consent, either expressed or implied, of one spouse to the proposed misconduct of the other spouse." ¹⁹

d. Recrimination. Recrimination is the defense that both parties are guilty of conduct amounting to a marital fault ground for divorce. ²⁰

e. Collusion. Collusion is the corrupt consenting by one spouse to the marital fault of the other spouse, such...