An action for divorce in Virginia commences with the filing of a complaint for divorce by one spouse (the plaintiff) against his or her spouse (the defendant) in the appropriate circuit court. Once the complaint and summons are served on the defendant, he/she has 21 days to answer the complaint. The defendant’s answer may consist of denials and admissions to the plaintiff’s allegations and may include the pleading of other facts—providing their side of the story. The defendant may raise any and all defenses to the plaintiff’s alleged ground for divorce and even file a counter-claim against the plaintiff seeking similar relief.
In Virginia, a divorce can be filed on fault-based or “no-fault” grounds. The fault-based grounds include adultery, cruelty and desertion. The no-fault ground is (1) separation for at least twelve months or (2) separation for at least six months, with a separation agreement and no minor children.
Virginia law provides a number of potential defenses to a complaint for divorce. The defenses may be procedural in nature or based on the conduct of the parties.
A defendant in a Virginia divorce action may raise one of several procedural defenses:
Pursuant to Virginia Code § 20-97, a divorce action cannot be maintained unless one of the parties at the time of filing for divorce was a resident and domiciliary of Virginia and had been for six months prior to the filing of the suit. To be a resident means that the plaintiff had an actual bond fide permanent home in Virginia for the six months preceding the filing of the suit and at the time of filing. The residency requirement does not require the plaintiff to have been present in Virginia for the entire six-month period. In order to be a domiciliary of Virginia, the individual must intend to live in Virginia indefinitely as evidenced by a permanent place of residence. If the residency and domiciliary requirements are not met, the court does not have jurisdiction to grant a divorce.
No Valid Marriage
Simply put: if there was no valid marriage, there can be no divorce. In Virginia, to have a lawful marriage, the parties must obtain a license and solemnize their union. Additionally, Virginia Code § 20-38.1 prohibits certain types of marriages in Virginia, including (1) a marriage entered into prior to the dissolution of an earlier marriage of one of the parties; (2) a marriage between an ancestor and descendant, or between a brother and a sister, whether the relationship is by the half or the whole blood or by adoption; and (3) a marriage between an uncle and a niece or between an aunt and a nephew, whether the relationship is by the half or the whole blood.
Statute of Limitations
Any complaint for divorce on the ground of adultery must be filed within five years of the adulterous act or the defendant may have a statute of limitations defense.
A defendant who invokes the doctrine of res judicata essentially states that the same cause of action was previously litigated between the parties, and asks the court not to relitigate the matter.
Defenses Based on the Conduct of the Parties
A defendant in a Virginia divorce may raise one of several defenses based on the conduct of the parties:
The recrimination defense may be raised when both spouses are guilty of marital misconduct. For example, if both parties have engaged in extramarital affairs and one of them files for divorce on the ground of adultery, the other spouse could raise the defense of recrimination. This defense could result in the court refusing to grant either party a divorce. Recrimination is a defense to a fault-based divorce but cannot be raised in a divorce based on the no-fault ground of separation of the parties.
Condonation refers to the act of forgiving an offending spouse for their misconduct and resuming cohabitation and/or sexual relations. For example, let’s say a husband discovered that his wife had committed adultery with the next-door neighbor. After several heated conversations, the husband takes his wife back; they resume their marital roles and sexual relations. If the husband later files for divorce on the ground of wife’s adultery, the wife could raise the condonation defense. Note that the defense would only cover misconduct known to the innocent spouse (in this example, the wife’s affair with the neighbor). Like recrimination, condonation can only be raised as a defense to a fault-based divorce, not to a complaint requesting a no-fault divorce.
The connivance defense may be raised where a spouse files for divorce on the ground of misconduct to which he or she actually consented (or even encouraged). An example can be found in the case of Hollis v. Hollis, 16 Va. App 74, 427 S.E.2d 233 (1993). In this case, a wife filed a complaint for divorce against her husband alleging adultery. The husband admitted that he had engaged in an extramarital affair, but raised the defense of connivance—alleging that his wife urged him to date his paramour, and even live with her. The court refused to grant the wife a divorce on the ground of adultery, instead granting a no-fault divorce. In its ruling, the court explained that connivance in Virginia is defined as “the plaintiff’s consent, express or implied, to the misconduct alleged as a ground for divorce.” In an effort to explain the difference between condonation and connivance, the court indicated that condonation occurs after the misconduct and connivance (the consent or encouragement) occurs before the misconduct.
One defense to a divorce complaint on the ground of desertion or abandonment might be that the defendant was justified in leaving their spouse—based on misconduct so atrocious and egregious that the parties could not have remained living together.
This is not an exhaustive list of all the defenses that could be raised in a Virginia divorce. Be sure to review the facts of your particular case with an experienced attorney in your jurisdiction. Livesay & Myers, P.C. has a team of experienced divorce lawyers across five office locations: in Fairfax, Arlington, Ashburn, Manassas and Fredericksburg. Contact us to schedule a consultation today.