In Virginia, there are two ways to obtain a divorce: fault grounds or no-fault grounds. There are advantages and disadvantages to each. The fault grounds for divorce in Virginia are adultery, cruelty, desertion, and felony conviction and confinement in excess of one year. To qualify for a no-fault divorce in Virginia, the parties must have been separated for at least one year if there are minor children. If there are no minor children, the parties only need to be separated for six months, with a signed settlement agreement, before filing for divorce.
Under the current statute, one of the requirements to obtain your final order of divorce is an affidavit of a corroborating witness. This third-party witness must attest to certain facts regarding the parties and their marriage. The witness is typically a family member or friend with personal knowledge of the Plaintiff, Defendant, and circumstances surrounding the separation. The corroborating witness rarely needs to testify in court; however, they will need to sign a witness affidavit in front of a notary. The affidavit will then be filed with the circuit court clerk as a part of the parties’ divorce documentation.
Under Virginia Code § 20-106, a corroborating witness’ affidavit shall:
- Verify that the affiant is over the age of eighteen and not suffering from any condition that renders him or her legally incompetent;
- Verify whether either party is incarcerated;
- Give factual support to the grounds for divorce stated in the complaint or counterclaim;
- Verify that at least one of the parties to the suit was a bona fide resident of Virginia at the time of filing and for at least six months immediately preceding the filing of the suit;
- Verify whether there were children born or adopted of the marriage and verify neither party is known to be pregnant from the marriage; and
- Verify the affiant’s personal knowledge that the parties have not cohabitated since the date of separation alleged in the complaint or counterclaim and that it has been either party’s intention since that date to remain separate and apart permanently.
The requirement for the corroborating witness came into effect in 1849. In the 1871 case of Bailey v. Bailey, the Supreme Court of Virginia explained that the statute was intended to prevent “parties who were weary of the bond of matrimony, and impatient of its restraints and obligations, from obtaining the aid of the courts through their own collusion and default. It was a rule for the protection of public morals and the sanctity of the marriage relations.”
The intended deterrent of “collusion” between spouses was arguably made moot when the Virginia legislature codified no-fault divorces in 1960. The no-fault ground of divorce essentially allows couples to “collude” in agreeing to separate, although the actual date of separation must still adhere to legal requirements.
Virginia is currently the only state to require third-party corroboration for both fault and no-fault divorces. The vast majority of states do not require witness corroboration of divorce grounds at all. This requirement is outdated and inconvenient for many divorce petitioners. It is often the case that a petitioner simply does not have anyone who qualifies as a witness, especially if the divorce or separation was kept private, or for any number of other personal reasons.
The requirement can also feel like an invasion of privacy, as the corroborating witness must personally visit your dwelling with some regularity. The witness must testify that you and your spouse live separate and apart, and they must know intimate details surrounding your marriage and its ultimate demise. Such a requirement is highly invasive and often burdensome to both the petitioner and the witness.
Thankfully for divorce petitioners, effective July 1, 2021, Virginia law will no longer require a corroborating witness for a no-fault divorce. This change will expedite the divorce process and save petitioners time, money, and headaches. Before this date, a corroborating witness will still be required for no-fault divorces. And a corroborating witness will remain required for fault-based divorces for the foreseeable future.
If you have any questions about fault or no-fault divorce in Virginia, be sure to consult with an experienced attorney in your area. From offices in Fairfax, Manassas, Ashburn, Arlington, and Fredericksburg, the family law attorneys at Livesay & Myers, P.C. represent clients throughout Northern Virginia. Contact us to schedule a consultation today.