The Virginia Verdict Review

Comprehensive and Informative Commentary on State and Federal Legal Matters

Monthly Archives: December 2011

Virginia Divorce Law: The Four Grounds for Divorce in Virginia

There are four main grounds for divorce in Virginia. These are identified in Virginia Code § 20-91. The first three are usually considered “fault” grounds and the last is considered a “no-fault” ground for divorce.

The four grounds for divorce in Virginia are as follows:

1) Adultery or sodomy and buggery outside the marriage

2) When one party had been convicted of a felony and confined in prison for more than one year

3) Cruelty, causing reasonable apprehension of bodily hurt, desertion or abandonment

4) Having lived separate and apart without any cohabitation and without interruption for one year.

1. Adultery

Adultery is the act of having sexual relations with someone other than your spouse. Most importantly, in order to qualify as a grounds for divorce, the adulterous conduct by one of the parties must be the reason for the disintegration of the marriage. There have been many defenses that attempt to show disintegration prior to an adulterous act. In some states, you are free to have relations after you separate. InVirginia, it is considered adultery to have sexual relations with another at any time while you are married. This is an important distinction. There is no statutory waiting period for divorces based on adultery.

Interestingly enough, adultery is a misdemeanor in Virginia.  As a result, you must prove adultery by “clear and convincing” evidence. You do not need to catch your spouse “in the act.” It is sufficient to establish time and opportunity of circumstance, as well as an inclination to act.  However, one needs an independent witness even if your spouse admits his or her infidelity.

When confronted with adultery, one may want to address issues with a counselor and decide whether one is capable of resurrecting the marriage. One also needs to decide if it is worthwhile to pursue the divorce on these grounds from an emotional as well as financial perspective.

2. Felony Conviction

Felony conviction is a grounds for divorce in Virginia when your spouse is convicted of felony during marriage for which he/she is sentenced to more than l year in jail and cohabitation with your spouse is not resumed after knowledge of the confinement.

3. Desertion and Cruelty

Desertion occurs when one spouse leaves the marital home and such leaving is not agreed upon by the remaining spouse. The party leaving must also desire the separation to be permanent. A cooling off period is not desertion, nor is a trip or a separate vacation. If both parties agree to a separation, one does not have grounds for desertion. If one alleges desertion, the alleging party must show that the leaving spouse intended the separation to be permanent and that his or her leaving was not condoned in any way by the one who remains. There is a one year statutory waiting period for divorce based on desertion. Once a divorce action is filed, it is not desertion to leave the marital home.

Desertion requires the concept of “clean hands.” Although a gradual breakdown in a martial relationship is not a legal justification for leaving, the person remaining must show that he or she did nothing to cause the other to leave. This does not mean that one cannot leave, only that he or she should be sure they can justify leaving.

Cruelty is one form of justification of leaving. It usually requires some form of physical violence or reasonable apprehension of bodily harm. Harm can be both physical and emotional. Usually one act does not trigger an ability to get a divorce based on cruelty. For one act to qualify, the act must be so bad that any reasonable person would be shocked upon hearing of it. Unfortunately, a slap does not usually reach this level of shock, but repeated slapping does. Thus, minor instances which are repeated can qualify as grounds for a divorce based on cruelty.

The Court can find that a cruel spouse is guilty of “constructive desertion” when that spouse’s acts cause the other spouse to leave the marital home to escape further acts of cruelty. The standard of proof for desertion and cruelty is a “preponderance of the evidence.”

4. Separate and Apart

On the application of either party if and when the husband and wife have lived separate and apart without any cohabitation and without interruption for one year. In any case where the parties have entered into a separation agreement and there are no minor children either born of the parties, born of either party and adopted by the other or adopted by both parties, a divorce may be decreed on application if and when the husband and wife have lived separately and apart without cohabitation and without interruption for six months. A plea of res adjudicata or of recrimination with respect to any other provision of this section shall not be a bar to either party obtaining a divorce on this ground; nor shall it be a bar that either party has been adjudged insane, either before or after such separation has commenced, but at the expiration of one year or six months, whichever is applicable, from the commencement of such separation, the grounds for divorce shall be deemed to be complete, and the committee of the insane defendant, if there be one, shall be made a party to the cause, or if there be no committee, then the court shall appoint a guardian ad litem to represent the insane defendant.

If you feel that filing for Divorce under one of these four grounds is appropriate to your particular situation, don’t hesitate to contact Westlake Legal to schedule a consultation.  Our attorneys have over 20 years of combined experience handling a wide variety of divorce issues.

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Wrongfully Accused: VA Drivers Convicted of Charge That Is Not A Crime

In a turn of events that is particularly embarrassing for the Commonwealth, it has recently been reported that a number of Virginia localities have been ticketing, convicting, and fining motorists for a charge that, though alleged to be illegal, does not actually violate Virginia law.

In this instance, the law in question is Virginia Code § 46.2-707, titled “Operating uninsured motor vehicle without payment of fee; verification of insurance; false evidence of insurance.”  As its title suggests, this code makes it unlawful to operate an uninsured motor vehicle without having paid the $500 uninsured motorist fee that is required of those who chose not to purchase auto insurance.  The statute also prohibits anyone operating an uninsured vehicle from either providing false insurance information or from failing to provide proof that they have paid the uninsured motorist fee.   A conviction under this statute amounts to a Class 3 misdemeanor, the punishment for which is a $500 fine and the immediate suspension of one’s license.  Additionally,  a conviction for providing false insurance information when driving an uninsured car is labeled a “crime of moral turpitude” and can adversely affect future employment and military service.

What is particularly important about this statute–and what a surprisingly large number of police officers, prosecutors, and judges state-wide seemed to have missed–is that it only applies to drivers who are operating uninsured vehicles.  Therefore, in order to properly be charged under this statute, a driver would have to admit that his/her car was uninsured and that he/she failed to pay the uninsured motorist fee.  There is no crime if a driver does not have their insurance card on them or simply can not find it, or if they never make the above admissions.

Perhaps the most disturbing aspect of this new revelation though is not the fact that a few police agencies (4 counties worth to be exact) misinterpreted the statute and handed out illegal tickets.  As shocking and ultimately disappointing as this is, the issue that is of most concern to me is the fact that more than a few defense attorneys, prosecutors, and judges in the Commonwealth were complicit in the mistake.  The discovery that this charge has been wrongfully levied time and again without being properly challenged in court suggests a much larger issue with the justice system here in the Commonwealth.  While it might be conceivable to forgive such an error on the part of VA state troopers (thought I would not normally advocate such a move), to be equally as lenient with lawyers in the prosecutors offices or with the judges involved is inappropriate.  Just as I am charged with providing my clients with the best defense under the law, these men and women have taken an oath to uphold the laws of our country and to pursue the ends of justices at all times.  To think that a mistake as widespread and costly as this could be made on a routine basis is both extremely disappointing and terribly frustrating.  Going forward, I hope cases like this will both galvanize the Commonwealth to rectify its mistakes and prompt more citizens to educate themselves as to their basic rights.  In doing so, citizens and public servants alike will help to ensure that gross misinterpretations of law such as this do not reoccur.

Christmas Displays Spark First Amendment Fight in Loudoun County

For many Americans, the Christmas season is synonymous with a big, jolly man dressed in red, a pile of presents stuffed under a sparkling tree, and fun-filled times with loved ones and friends.  In Loudoun County, however, an entirely different and far less holly-jolly set of practices are beginning to encroach on the good-spirited traditions of the season.  Rather than making gingerbread houses and planning caroling with neighbors, many residents of the county have spent considerable time over the last few years arguing over Christmas displays.  In fact, the debate has grown so heated in the past that it has not only gained significant press coverage, but it prompted local officials to convene a number of special meetings and town discussions.

In each of these town-hall meetings, the first of which was in 2009, the issue at hand was whether residents should be allowed to erect Christmas-themed displays on the lawn of the Loudoun County Courthouse.  On the one hand, proponents of the displays argue that they are simply expressing their holiday cheer on public property and that, as a result, their right to do so is protected as a matter of free speech.  Others are quick to point out that the groups that erect the displays–most notably the Knights of Columbus–have tradition on their side, as they have been placing Christmas displays there for the past 50 years.

Those that oppose the notion of Christmas-themed displays, however, do not buy in to this logic.  For local atheist groups and other non-Christian residents, it is difficult to see the consistent display of Christmas symbols on government property as anything other than state sponsorship of religion.  It is this logic, in fact, that drove local residents to complain to the Facilities and Grounds Committee of the Loudoun County Courthouse in the first place.  In the two years since, the County’s stance on the issue has transformed numerous times.  The current policy states that, while erecting displays on the Courthouse lawn is allowed, permits to do so will only be granted to the first ten applicants each year.  As this year’s displays demonstrate, what results is a cacophony of unique displays that are representative of a variety of religious views, including atheism.

Presumably, since a variety of viewpoints are expressed under the current system, it would be safe to assume that a reasonable compromise has been reached.  Unfortunately, one of this year’s displays (a crucified skeleton in a Santa suit that was later torn down) seems to have struck a chord; the issue is again being debated throughout the county.  Given all of this, I thought it might be helpful to take a quick look at this issue from a legal prospective.  Regardless of whether you are religious, having a better understanding of the logical rationale surrounding the Board of Supervisors’ decisions might help to shed some much needed light on this debate.

All religious issues aside, the debate at hand is really one over the proper interpretation of the First Amendment to the U.S. Constitution, which states in part that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.”  While proponents of the displays cite the Amendment’s Free Speech Clause as justification for placing the signs up each year, opposition groups look for similar support in the Amendment’s Freedom of Religion Clause.  Needless to say, the conflict between these two clauses is not new, nor is it one that has been ignored by the courts.  However, in sorting through Supreme Court decisions on the issue, I have found a relatively articulate passage that I think speaks to the heart of the current debate.  An amalgamation of numerous decisions, it reads as follows:

“The First Amendment does not guarantee access to property simply because it is owned or controlled by the government. The crucial question is whether the manner of expression is basically compatible with the normal activities of a particular place at a particular time.  Thus, by the nature of the use to which the property is put or by tradition, some sites are simply not as open for expression as streets and parks are.  But if government does open non-traditional forums for expressive activities, it many not discriminate on the basis of content or viewpoint in according access.” (Emphasis added)

Additionally, when ruling as to whether religious groups should be granted access to public school facilities, the Supreme Court found that “although government may not promote religion through its educational facilities, it may not bar student religious groups from meeting on public school property if it makes these facilities available to nonreligious student groups.”

Put into context, the Supreme Court seems to be saying that while all citizens of Loudoun do enjoy concurrent rights to free speech and freedom of religion, these rights are not immune from limitation.  Instead, one’s ability to exercise these rights can be a function of location and all locations are not created equal.  In instances where public property is being used as the platform for an expressive act (as is the case in Loudoun), the Court seems to be saying, first and foremost, that all government-run properties are not created equal and that the government is not obligated to make all such facilities available to the public. In other words, while the government may not be able to regulate expressive acts in open forums such as town streets and parks, it can regulate such acts in less-open areas, such as state-run buildings and governmental properties.  However, should the decision be made to open these properties to expressive activities, the Court is very clear that it must be done in a manner that does not “discriminate on the basis of content or viewpoint.”  Likewise, the opportunity to use the facility or property cannot be restricted based on religious preference.  Rather, if a property is made available to a religious group, it must be made available in an equal and non-exclusive manner to any interested non-religious groups, and vice versa.

Given this information, I have to say that I find the Loudoun County Board of Supervisors’ current system of allocating space for holiday themes rather well-thought-out and fair.  By granting permits for displays to the first ten groups to apply, the County is guaranteeing equivalent access to the space regardless of religion or content.  In doing so, the county is promoting the notions of fairness and equality for all, both of which are fitting sentiments to espouse during the Christmas season.  Unfortunately, it seems that many of the citizens of Loudoun have lost sight of the importance of these values, not to mention the true meaning of the holiday.  I have probably said this fewer times than Santa has reindeer, but I have to admit it: I think the government got it right on this one…