The first step in every divorce is the establishment of a permanent separation of the parties. Whether one spouse informs the other that they desire to move on, or the parties mutually agree to go their separate ways, a separation always precedes the legal divorce process.
In Virginia, couples with children and without a fault basis have previously been required to separate for a period of one year prior to filing for divorce. If couples without children can execute a settlement agreement that resolves all matters pertaining to their marriage, they still need to be separate for a period of six months prior to filing. Historically, only a fault-based divorce—on grounds such as adultery, cruelty, or desertion—allowed a party to file before these statutory separation periods elapsed. These “waiting periods” are often fraught with intense emotional and financial stress as the parties struggle to determine what their separate lives will look like in the coming years.
However, the General Assembly of Virginia recently sought to relieve some of the hardship that divorcing couples experience during the separation through House Bill 303 (HB303), taking effect on July 1, 2026, by amending two Virginia statutes pertaining to divorce.
What Is a Bed and Board Divorce?
Virginia Code §§ 20-91 and 20-95 provide the grounds under which parties can seek a divorce. A party can seek an “absolute” divorce under Virginia Code § 20-91 or a “bed and board” divorce under Virginia Code § 20-95.
A bed and board divorce allows separated couples to file for a court to determine the division of marital property and debt, the terms of custody and visitation of any minor children, as well as the amounts of both child and spousal support that are to be paid between the parties. Unlike an absolute divorce, a bed and board divorce does not dissolve the marriage in its entirety. This means that a bed and board divorce precludes either party from remarrying during the life of the other. If any party subject to a bed and board divorce order would want to remarry, the bed and board divorce would need to first be transitioned into an absolute divorce.
An absolute divorce addresses the same issues as a bed and board divorce, but it also has the power to legally dissolve the marital relationship.
What HB303 Changes
Prior to the July 1, 2026 change, a bed and board divorce could only be sought on the fault-based grounds for divorce listed above, and filing for an absolute divorce required either a fault basis or the statutory waiting periods. That combination is what made the bed and board option so limited.
So why would anyone proceed with a bed and board divorce? In the past, bed and board divorces were infrequently utilized due to the required fault-based grounds and an inability to dissolve the marriage. Fault-based grounds for divorce require presenting evidence to the court and can be difficult and costly to prove. Further, by the time proper separation periods lapse, the bed and board divorce becomes irrelevant as the absolute divorce can resolve the exact same issues and dissolve the marriage.
However, as of July 1, 2026, HB303 enables parties to circumvent the fault-based requirement and/or the six-month or one-year separation periods, which have inhibited previous divorcees from getting the ball rolling towards finality, by pursuing a bed and board divorce.
HB303 enacted an amendment to Virginia Code § 20-95 to include the italicized language below:
A divorce from bed and board may be decreed for cruelty, reasonable apprehension of bodily hurt, willful desertion or abandonment, or on the application of either party upon the parties living separate and apart with the intent of at least one of the parties to remain separate and apart permanently. No waiting period is required for the filing of a divorce from bed and board pursuant to this section, but such divorce may be decreed only in accordance with the provisions of § 20-91.
Filing Immediately After Separation
The amendment to this statute is incredibly important for couples in the early stages of their divorce process. The new language allows couples to start the formal legal process of a bed and board divorce on the first day of separation. As of July 1, 2026, the days of waiting six months or one year in the absence of a fault basis prior to taking any court action are in the past. As long as one party has communicated to the other that they intend to begin a permanent separation, either party may immediately move forward with filing for a bed and board divorce.
This process also provides the opportunity for either party to seek immediate court intervention by filing for pendente lite (Latin for “pending litigation”) relief. Pendente lite relief can set temporary schedules for custody and visitation, determine temporary amounts for child and spousal support, and put restrictions on the parties as it pertains to the use of marital assets.
Previously, matters of custody, visitation and support could be addressed in the juvenile and domestic relations district courts (J&DR courts) during the period of separation; however, if the separation periods lapsed while these J&DR matters were still pending, a divorce filing in circuit court could result in the J&DR matters being “divested” to circuit court. If a J&DR matter is divested, all progress made in the J&DR court would go to waste and the matter would start anew. By utilizing the bed and board divorce early, matters of custody, visitation and support can be addressed through pendente lite relief without the threat of divestment down the road.
Immediate bed and board divorce filings will also shorten the overall litigation timeline, resulting in a faster final outcome. By avoiding the typical separation periods, the emotional and financial strains imposed by these separations can be minimized. The caveat of a bed and board divorce remains in place though; anyone seeking a bed and board divorce will eventually need to transition into an absolute divorce if they wish for dissolution of their marriage.
The Post-Separation Adultery Change
Although it does not pertain to bed and board divorce, an additional amendment implemented by HB303 is worth noting; the new law also amended Virginia Code § 20-91(a)(1) to include the following italicized language:
A. A divorce from the bond of matrimony may be decreed: (1) For adultery that occurred prior to the final separation of the parties; or for sodomy or buggery committed outside the marriage;
As mentioned earlier, fault-based grounds for divorce allow the aggrieved party to file for an absolute divorce prior to the lapse of a separation period. Adultery, or sexual intercourse with a person outside of the marital relationship, is one of these grounds. Previously, adultery that occurred prior to or after the date of separation could serve as a fault-based ground for divorce. However, as of July 1, 2026, post-separation adultery is no longer a basis upon which a fault-based absolute divorce may be sought.
The amendments to Virginia Code §§ 20-91 and 20-95 change the initial pathways available to divorcing couples. And while the courts will be more accessible to parties early on in the process, other means of resolution remain highly advisable. Settlement efforts in the early stages of separation, when appropriate, can help to keep costs down and shorten the overall timeframe of a divorce.
If you are seeking permanent separation with the intent to divorce, or your spouse has communicated that this is their intent, be sure to discuss your options with a knowledgeable family lawyer in your area. The family law attorneys at Livesay & Myers, P.C. are experienced with every type of divorce matter in the courts of Northern Virginia. Contact us to schedule a consultation today.