Legal Question in Family Law in Virginia

Divorce prior to 12 months

My wife says she has filed for divorce after abandoning me. She says on grounds of cruelty. I had 2 DWI's in 2 years 04 & 05. Have been attending AA and counseling for 11 months after. Had a beer in Oct. and again in Jan. Have not been served papers yet. Never touched or intimidated my wife. She has eating disorder Which led me to drink. Have five kids, House and other prop. Do I have a chance?

Asked on 5/01/06, 12:23 pm

3 Answers from Attorneys

Paul B. Ward Law Offices of Paul B. Ward
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Re: Divorce prior to 12 months

Of course you have a chance.

The issues in cases such as yours are custody and visitation concerning the kids, support for the kids and the spouse, and division of property that was acquired during the marriage (a little more complicated than that short summary suggests.)

In looking at these issues the conduct, abilities, resources and needs of both parties comes into play, and either the parties or the court has to sort all this out. It is not a minefield you should walk through without legal counsel.

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5/01/06, 1:25 pm
James Wilson James H. Wilson, Jr., Attorney & Counsellor at Law
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Re: Divorce prior to 12 months

You should consult with a Virginia attorney concerning the applicability of the law to the facts of your situation. You should consider marital or family counseling to preserve your marriage. If you find that you and your spouse cannot preserve your marriage, you should consider alternative dispute resolution (ADR) methods such as mediation, which may be faster, less costly and less adversarial than a contested divorce suit. The following is general legal information on the grounds for divorce in Virginia.

A circuit court judge in Virginia may grant a decree of divorce from the bond of matrimony or a final divorce based on fault or no-fault grounds. The fault grounds for a divorce from the bond of matrimony include the following:

1. Adultery, or sodomy or buggery outside the marriage;

2. Conviction, sentencing to confinement for more than a year, and confinement for a felony offense (with no condonation); and

3. Cruelty or reasonable apprehension of bodily hurt (one year waiting period),

4. Desertion or abandonment (one year waiting period).

Defenses to a divorce based on a fault ground may include condonation, recrimination, justification for leaving and connivance.

A no-fault divorce may be granted after the husband and wife have lived separate and apart without any cohabitation and without interruption for a year. If the parties have a property settlement agreement and there are no minor children of the marriage, or born by either and adopted by the other, or adopted by both, then a no-fault divorce may be granted after the parties have lived separate and apart without any cohabitation and without interruption for six (6) months.

A party may immediately file for a divorce from bed and board on the grounds of cruelty, reasonable apprehension of bodily hurt, willful desertion or abandonment with no waiting period. A divorce from bed and board does not allow the parties to remarry, but the parties are declared to be perpetually separated and protected in their persons and property. If you are considering the dissolution of your marriage which cannot be saved through counseling or settled through ADR, you should discuss with your attorney the advantages and disadvantages of immediately seeking a divorce from bed and board rather than waiting for a final divorce.

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5/04/06, 9:46 am
Michael E. Hendrickson Attorney & Counsellor at Law
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Re: Divorce prior to 12 months

I doubt, based upon what you've described, that your wife has viable grounds for the fault divorce ground which she's alleged, i.e., cruelty(which may explain why you have not yet been served with papers and furthermore, may not be until the requisite waiting period for no fault divorce elapses which is 12 months under your apparent circumstances.)

Nevertheless, Mr. Ward has offered sound advice in suggesting that you secure counsel to assure that all of your rights are fully protected when, to use Mr. Ward's metaphor, you begin to walk through "the minefield" of divorce.

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5/03/06, 11:05 am

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