In a case recently reviewed by the Virginia Court of Appeals, a wife sought appeal of her divorce case because the judge refused to grant a fault-based divorce on the ground of pre-marital cruelty. The trial court in her case instead entered the divorce based on the parties’ living separately, and the Court of Appeals decided there was no error in so doing. In Virginia, if more than one ground for divorce exists, the trial judge has discretion to enter the divorce on any applicable ground. The Court of Appeals, relying on this rule, held that even if the wife had proved pre-marital cruelty, the trial judge acted properly in choosing to grant the divorce on the no-fault ground of the parties’ separation.
In the course of reaching its decision, the Court of Appeals “assum[ed] without deciding” that pre-marital cruelty is a valid ground for divorce in Virginia. But that prompts the bigger question: can pre-marital conduct be a valid ground for divorce in Virginia?
The grounds for divorce in Virginia are adultery, conviction of a felony after the marriage, cruelty, abandonment, and living separately for one year. It is immediately clear that spouses cannot live separately for a year before they are married, nor can one spouse be convicted of the same felony both before and after the marriage. Adultery at its most basic level is extramarital sex, so again by definition one cannot commit adultery unless one is married.
Abandonment also requires a marriage that one party can desert, so pre-marriage desertion won’t work either.
Cruelty, on the other hand, is a possibility. One spouse’s acts of physical violence or conduct that endanger the other spouse’s life can constitute cruelty. So can abusive language or neglect. These events could occur at any time, even before the marriage. Theoretically, it would be possible to seek divorce on the ground of cruelty that occurred before the marriage.
In practice, however, the biggest hurdle to seeking a divorce based on pre-marriage fault is the fact of the marriage itself. Indeed the trial court above found that by marrying her husband the wife had forgiven his bad acts prior to the marriage.
Even though the trial court didn’t grant a divorce on the ground of pre-marriage cruelty, it did consider the husband’s actions prior to the marriage when deciding both the issues of equitable distribution and spousal support. The Virginia Code directs judges to consider the factors and circumstances surrounding the dissolution of the marriage in deciding property, debt and spousal support issues. These “factors and circumstances” are a broader category than simply the specific grounds for fault-based divorce. A spouse’s bad conduct may not rise to the level of cruelty constituting a ground for divorce, but if it causes the parties to seek a divorce it is still relevant. So, in this context, pre-marital cruelty could have an impact on the overall equitable distribution of assets or an award of spousal support.
If you are seeking a divorce from a spouse who engaged in cruel or abusive behavior prior to the marriage, you should review that pre-marriage behavior with an experienced divorce attorney as soon as possible. The divorce attorneys at Livesay & Myers, P.C. are experienced in all aspects of separation and divorce cases, and represent clients throughout Northern Virginia. Contact us to schedule a consultation today.