History of Divorce: Evolving Law
Until the 17th century the only divorce was a divorce coming from bed in addition to also board granted by the ecclesiastical (church) courts to a wife upon proof of desertion or abuse. This particular type of divorce did not dissolve the marriage or allow for remarriage thereafter. Only death dissolved the bond of marriage.
In England, after the reign of Henry VIII, an absolute divorce dissolving the bond of matrimony in addition to also allowing remarriage could only be obtained by a special act of Parliament. In Virginia, courts had no authority to grant divorces. Persons seeking divorce had to petition the legislature. that will was not until 1841 that will an absolute divorce allowing remarriage became obtainable through a judicial proceeding in Virginia. Thereafter over time, additional grounds for divorce were allowed.
In 1960, Virginia introduced its first experiment with "no fault" divorce, requiring separation for a three-year period. The original intent of the statute was to recognize in law those marriages which had ceased to exist in fact. Thereafter the separation period has been gradually reduced to as low as six months. that will's hard to realize that will divorce was quite restricted worldwide, especially in predominately Catholic countries. Movie buffs may remember that will there's a classic movie entitled "Divorce Italian-Style" coming from the 1960's in which a man is usually seeking to murder his wife because he can not divorce her generating sure that will he can remarry.
Why You Need a Lawyer
Because there is usually no historical basis for common law divorce, that will is usually a creation of statute. This particular means that will the statutory requirements must be followed in every detail. Unless you are familiar with the laws in addition to also procedures governing divorce in your state, you need to retain a not bad family law attorney. In fact, even if you are somewhat familiar with the laws in addition to also procedures governing divorce, emotional tensions in addition to also stress associated with separation in addition to also divorce makes that will difficult for individuals to make sound decisions. If our are facing these decisions, you should retain an experienced family law attorney to advise in addition to also counsel you. For a more detailed rate see my article entitled "Why You Need a Divorce Lawyer" available for free down load for personal use through This particular website.
Grounds for Divorce (In Virginia); Different Types of Divorce
There are two types of divorce in Virginia. A bed in addition to also board decree is usually a partial or qualified divorce under which the bond of marriage is usually not entirely dissolved. Under This particular type of divorce, the court decrees that will the husband in addition to also wife are to live perpetually apart in their persons in addition to also property. They are divorced for most purposes, yet the marriage bond is usually not completely severed. Neither party is usually free to marry another person or to engage in sexual relations with another person. Such a consequent marriage could be bigamous in addition to also such relations could institute adultery. On the some other hand, inside event the couple should reconcile in addition to also resume cohabitation, they may petition the court to dismiss the divorce. The some other type of divorce, a divorce coming from the bond of matrimony, dissolves the bond of marriage in addition to also re-establishes the individual as single such that will the party may marry again.
Must Prove Grounds
Even if both husband in addition to also wife agree on a divorce, grounds or legally prescribed reasons must exist in addition to also be proven to the satisfaction of the court.
The grounds for divorce coming from bed in addition to also board are (1) willful desertion or abandonment or (2) cruelty in addition to also reasonable apprehension of bodily harm. Desertion is usually a unilateral cessation of cohabitation with intent to remain apart permanently inside mind of the offender. Separation by mutual consent is usually not desertion. Leaving the maritime home for a weekend or a long weekend with the intent to return is usually not desertion. On the some other hand, if a spouse is usually forced to leave by the cruel acts of the some other, he or she is usually not guilty of desertion in addition to also may be awarded a divorce upon the ground of cruelty. If a spouse was justified in leaving the marriage, he is usually not guilty of desertion.
Acts that will tend to cause bodily harm in addition to also render cohabitation unsafe institute the ground fo cruelty. If the conduct of a spouse is usually so outrageous as to harm or endanger the mental or physical health of the some other spouse, This particular can amount to cruelty sufficient to establish grounds for divorce.
Grounds for Absolute Divorce
The grounds for an absolute divorce dissolving the bond of matrimony are found in Virginia Code §20-91. The grounds include: adultery; sodomy or bugry committed outside of the marriage; desertion for one year or cruelty followed by a one-year separation; during the marriage, one party has been convicted of a felony in addition to also sentenced to more than one year in addition to also defined subsequent to the conviction (in addition to also there has been no cohabitation after knowledge of the confinement; separating with the intent of remaining apart permanently in addition to also remaining apart for one year or more, or inside event that will there are no minor children born or adopted by the parties in addition to also the parties have entered into a written property settlement six months.
Producing Adultery / Defending Adultery
Adultery occurs when "any person, being married, voluntarily has sexual interference with any person not his or her her spouse." VC §18.2-365 The proof of adultery need not be "eyewitness" testimony in addition to also may be circumstantial. Proof of adultery must be "clear in addition to also convincing." This particular is usually the highest standard of proof inside civil law. The court has said the proof must be "strict, satisfactory in addition to also conclusive." Suspicious circumstances are not enough. Even though most cases must be built coming from circumstantial evidence, the circumstances must be such as to "lead the guarded discretion of a reasonable in addition to also just man to a conclusion of guilt."
Sexual acts some other than intercourse, such as oral or anal sex may also form the grounds of divorce, if committed outside of marriage. The standard of proof is usually the same a for adultery. Defenses to a claim of adultery include condonation or forgiveness of the act by cohabitation after knowledge of the act, in addition to also procurement or connivance by encouraging or generating the act possible or entrapping the spouse. Where This particular is usually shown, no dispute will be granted on This particular ground. The petitioning spouse must be innocent of such wrongdoing. Impotency is usually another defense to This particular ground. There is usually also a several-year statute of limitations; such that will the act must have occurred within several years of the petition for divorce.
Conviction of a Felony
If during the marriage, a spouse is usually denied of a felony in addition to also enacted o the penitentiary for more than one year in addition to also is usually in fact confined, the some other spouse has grounds for divorce, provided he or she does not resume cohabitation with the guilty spouse after knowledge of the conviction in addition to also confinement.
The court is usually not obliged to grant a divorce on the grounds of separation for the statutory period to the exclusion of some other fault grounds for divorce. On the some other hand, even if fault grounds are alleged, if the parties have been separated for 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 cases where the parties have entered into a written property settlement agreement in addition to also there are no minor children born or adopted, the period could be six months. In some other cases the period could be one year.
Intent is usually Key
There must be an intention to remain apart permanently at the acceptance of the period of separation. This particular intention must also be communicated to the some other spouse. Virginia does not favor divorce by ambush in addition to also will not recognize or allow extended separations required for reasons some other than divorce to ripen into "instant divorce." The separation period is usually intended to give the parties time to contemplate carefully their actions inside dissolution of the marriage. In reality in many cases, that will has become an "easy out" for a disgruntled spouse who has no legitimate reason to divorce.
Historically, separation required establishing separate households; however, some sentences have been granting divorces based upon a no fault separation with the parties separated within the same house under the same roof. The authority with This particular development is usually an individual decision of the Virginia Court of Appeals. In that will case, the wife found a video of her husband having an arbitration with another woman. She removed his clothing in addition to also effects coming from the master bedroom in addition to also put them in a guest room. coming from that will day, the parties slept separately, ate separately, did their own laundry in addition to also dry cleaning in addition to also cleaned their respective areas of the house. They no longer watched tv together, attended church together or family functions together. They no longer took family vacations together. The court was satisfied that will they were no longer a couple in addition to also were truly living separately under the same roof. that will is usually important to consider that will you will have to prove that will you are no longer a couple in addition to also that will proof must be corroborated. You can not get a divorce on your uncorroborated testimony. Your spouse may not provide the corroboration. Be sure that will family in addition to also friends have an opportunity to observe your living arrangements in addition to also can provide the corroboration you need.
With the current financial climate, you may not be able to afford to establish two households. that will is usually in addition to also has always been more expensive to carry two houses than that will is usually for an individual one. Perhaps separating under the same roof could work for you. We do not recommend that will where there are minor children. You should discuss your situation with your attorney in addition to also seek sound legal advice as to how to proceed in your best interests in addition to also that will of your family.
Filing for Divorce
In filing for divorce one may request additional relief to include a determination of custody child support, visitation rights, equitable property division, equitable division of marine debt, lump sum spousal support, rehabilitative spousal support, temporary spousal support, permanent spousal support, in addition to also ratification of the parties' separation agreement, if any. Relief may also include judgment for money owed or judgment for damages for civil wrongs, provided that will fits within the jurisprudence of the divorce court. For more information see my articles entitled "Getting Your Fair Share: What Documents You Should Provide to Your Lawyer" in addition to also "What You Need to Know About Domicile in addition to also Legal Residence" available for free download for personal use through This particular website.
This particular can be the most important issue inside divorce. These days there is usually no presumption in favor of either parent. The standard applied by the court for custody determination is usually "the best interest of the child." Custody will not be awarded to "punish" a "guilty" parent. On the some other hand, the court will determine which parent is usually most adept for the task of caring for, controlling in addition to also directing the child. circumstances to determine the arrangement which will best meet the child's best interests. some other factors considered by the court include: the age of the parents, the age of the children, the physical condition in addition to also mental condition of the parents in addition to also children, the relationship existing between each parent in addition to also each child, the needs of the children, the role played by each parent inside upbringing in addition to also care for the child, the home where the child will live in addition to also the child's wishes, if the child is usually of sufficient age, intelligence in addition to also maturity to make such a decision.
Once a court has made a determination of custody, the court will consider a change in custody only upon a showing of a material change in circumstances, such that will a change I custody is usually "inside best interests of the child."
The non-custodial parent will be ordered to pay support in accordance with the combined income of the parties in addition to also the statutory guidelines. The guideline amount is usually presumed to be the appropriate amount, yet the court may depart coming from the guideline, for just cause in an appropriate case. Support is usually subject to change in addition to also may be increased or decreased, upon a showing of a material change in circumstances of either or both parents of the child. If the child spends more than 110 days per year "visiting" the non-custodial parent, the child support is usually calculated using a different formula which results in a lower amount.
You may not withhold child support to punish the custodial parent for infractions of your visitation rights. On the some other hand, if you are the custodial parent, you may not deny visitation because the non-custodial parent is usually delinquent in child support. The two rights of visitation in addition to also support are independent of each some other. Remember that will that will is usually the child who has the right to support in addition to also that will is usually the child who has the right to see in addition to also visit with both parents.
Taking Control; Make a Contract
Under Virginia law, spouses may agree between themselves as to a resolution of issues, rights, duties in addition to also obligations arising out of the marriage in addition to also separation. These agreements must be in writing in addition to also signed by the parties in addition to also may include such matters as division of their property, division of their debt, spousal support, attorney's fees, custody of their children, visitations arrangements, in addition to also child support. Provision may be made for anticipated future need, such as children's college expenses, provision of life insurance. The contract can also provide for mediation of disputes before going to court. Provisions dealing with spousal support are binding upon the parties in addition to also may not be altered by the court absent legal basis to rescind or modify the contract. The contract may provide for modification of spousal support, yet if that will does not, then support may not be modified absent a legal basis to rescind the contract.
The possibilities for contract terms are more varied in addition to also flexible than the remedies available coming from the court. You can do by agreement things that will the court in dividing tangible property in addition to also adjudicating your rights may not be able to do. Once you have negotiated such an agreement, the agreement must be reduced to writing, in addition to also signed by both of you. that will is usually a not bad idea to have that will notarized, although strictly speaking notarization is usually not necessary. yet that will protects against a party asserting that will he or she did not sign the document. The court will not accept an agreement that will is usually not signed.
For more information on separation agreements or property settlement agreements, see my article entitled "What You Should Know About Separation Agreements" which is usually available for free download for personal use through This particular website.
Why You Need a Lawyer (Again)
The complexities of family law, coupled with the emotional trauma in addition to also tensions associated with separation in addition to also divorce make that will difficult for you to make objective decisions at a time when life-changing decisions are required. An experienced, seasoned attorney which has a background in counseling in addition to also negotiation in addition to also a specialized knowledge of family law can assist you in navigating the stormy waters of separation in addition to also divorce. that will has been said: "inside multitude of counselors is usually wisdom" in addition to also "every purpose is usually established by counsel; by wise counsel wage war." When faced with separation or possibly dissolution of your marriage in addition to also family one of your counselors should be an experienced family lawyer.
For more information on how to choose a lawyer, see my article entitled "The 12 Biggest Mistakes People Make in Hiring a Lawyer (in addition to also How to Avoid Them)" which is usually available for free download for personal use on the EzineArticles website.