When Can I Get a DivNo Fault Divorce or Fault Divorceorce?

I am often asked about the timing for a divorce. Specifically, when can a divorce take place? How long does one have to wait before filing? Below is the answer.

The General Rule: The Waiting Period for a Divorce

After you separate, there is a waiting period before you can file for divorce. As a general rule, the waiting period depends on whether you have minor children and is as follows:

If you have minor children, you have to wait 12 months before you can file for divorce.
If you do not have minor children, the waiting period is 6 months with an executed Property Settlement Agreement, 12 months without.

The general rule applies to “no fault” divorces, i.e. divorces that are based on not wanting to be married any longer. These are often referred to as a divorce based on “living separate and apart”. In the general case, husband and wife separate, and maintain the separation for the waiting period. During that time, they negotiate the terms of the divorce (who gets what) and often execute a property settlement agreement. After the waiting period elapses, one party will file and finalize the divorce.

In some cases, if issues still exist after the waiting period, there can be a trial on whatever is outstanding. In these cases, the divorce is still based on the parties living separate and apart for the statutory waiting period, the trial just resolves the issues the couple were unable to resolve on their own.

The Exception: – The Fault Based Divorce

In some cases, no waiting is necessary – the aggrieved spouse can file for divorce immediately. These are the “fault based” divorces and can be based on reasons such as adultery, cruelty, abandonment, etc. Virginia law specifies the grounds for a fault based divorce.

In the fault based divorce, one party will file for divorce soon after separation. The process begins immediately after filing. There is no waiting period for the final divorce. The couple will then proceed to take to trial whatever issues they are unable to settle. Here is where you will often see the trials for custody, support and/or property.

It is notable, however, that even though cases start out as fault based divorces, many end as divorces based on living separate and apart. What often happens is that a couple will file for divorce on fault based grounds. Litigation will begin and some issues may or may not go to trial. At some point during the process, the couple sits down and works out their differences. A settlement is reached and as part of the agreement, the divorce complaint is amended to be a divorce based on living separate and apart.