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Divorcing in Cases of Domestic Violence in Virginia | Virginia Law Help

Divorcing in Cases of Domestic Violence in Virginia

Reviewed by: Susheela Varky, Valerie L'Herrou

If you or your children are in immediate danger, call 911. The Virginia Sexual and Domestic Violence Hotline is also available any time, day or night: call 800-838-8238 or you can chat or text with someone.

You do not need to file for divorce or take any legal steps before reaching out for help. Safety comes first.

If your spouse has been abusive, filing for divorce can feel overwhelming and frightening. You may worry about your safety, your children, or what happens if your spouse finds out you are filing. This article explains how to protect your safety during the divorce process and what legal tools are available to you.

Every situation is different. If you have been abused, talking to a lawyer or a domestic violence advocate before you file is one of the most important steps you can take.

When can someone file for divorce?

Before you can file for divorce, you must have grounds, meaning a legal reason to ask for a divorce. In Virginia, some of the grounds for divorce include adultery, cruelty, abandonment, and conviction of certain crimes. These are called fault grounds because the divorce is based on something wrong the other person did.

Most divorces are granted on no-fault grounds, meaning the spouses have lived separate and apart for one year, or six months in certain circumstances with no minor children. This is also called an uncontested divorce. It does not mean fault was not involved. It just means the legal reason for the divorce is the period of separation, not one person's wrongdoing.

Because an uncontested divorce does not involve a lengthy court fight, it is the most common type of divorce, even when one person is at fault. It is the easiest and least expensive option.

If I am a victim of domestic violence or abuse, can I get a divorce on the grounds of “cruelty”?

If you are a victim of domestic violence or family abuse, you may want to file for divorce on the grounds of cruelty. But cruelty can be hard to prove.

For example, a single physical assault by a spouse counts as family abuse, but it may not count as cruelty unless it caused serious harm. On the other hand, some behavior that would not count as family abuse, such as belittling, spiteful, controlling, or mean behavior, could be considered cruelty, but proving that this behavior rose to the level of cruelty can be difficult.

For spouses with a lot of money or property at stake, it may be worth hiring a lawyer to pursue fault grounds like cruelty, desertion, or adultery. The court may be more likely to award more support to the spouse who was not at fault. But if you lose on the fault grounds, you would have to file an uncontested divorce anyway. For most people, an uncontested divorce is much easier and less expensive. And while an uncontested divorce requires a one-year separation in most cases, a fault-based divorce can take even longer.

Read more about what is considered domestic violence in Virginia.

What if my spouse sexually assaults me? 

If your spouse rapes or sexually assaults you, that is a crime. You can choose whether or not to report it to the police. If you do report the assault, the evidence may also be used to support a claim of cruelty in a divorce case. Even if you do not report it, the assault may still be considered cruelty, although it can be harder to prove without a report made at the time of the crime.

Whether or not you decide to report the assault, seek medical care as soon as possible so you can receive any treatment you may need. If you can, try to get medical attention before showering or changing clothes, since this may help preserve physical evidence. You can go to an emergency room and ask for a Sexual Assault Nurse Examiner (SANE nurse).

Even if you don’t want to report the crime, collecting this evidence at the time of the sexual assault is important. Getting medical care preserves evidence if you later decide to report the assault to police, file for divorce on the grounds of cruelty, or assist in investigations involving assaults against other people.

Your medical records will be kept confidential. You can choose whether to report the assault after the evidence has been collected. You may also seek medical care at any time, even if you have already showered, changed clothes, or decided not to report the crime.

Should I talk to a lawyer before I file?

Yes, it may be helpful to talk to a lawyer before you file for divorce. A lawyer can help you think through the safest way to move forward. 

A lawyer can also make sure your rights to custody, support, marital property and assets, and future rights like retirement accounts are protected.

You do not need a lawyer to file for divorce. However, it is a good idea to at least talk to a lawyer before filing, to make sure you don’t give up any of your own rights or those of your children.

If you cannot afford to hire an attorney, free or low-cost legal help may be available. See the resources at the bottom of this page.

Can you keep your address private from your spouse?

Yes. If you are concerned about your spouse finding out where you live, the Virginia Address Confidentiality Program allows victims of family abuse to use a substitute address for official records so your actual location stays protected.

You will need to apply through a Victim-Witness Advocate, a Domestic Violence program, or a legal aid program. 

Once you are approved, the Address Confidentiality program allows you to use a special mailing address that is not where you live, to use on all court and other legal documents so the abuser cannot trace you.

If your spouse has any custody or visitation rights, you will need to find a neutral place to transfer the children so your spouse does not come to your home. Make sure the children do not share your address with your spouse.

How do you serve your spouse if there has been abuse? 

When you file for divorce, your spouse must be officially notified. This is called service of process.

In most uncontested divorces, the easiest option is to ask your spouse to sign a form accepting the papers directly from you. However, if your spouse has been abusive, that direct contact can put you at risk.

Instead, ask the court to have the sheriff's department deliver the papers to your spouse. This keeps you from having to contact your spouse yourself. When you file your divorce complaint, provide your spouse's address and ask the court to arrange service through the sheriff.

It is a good idea to enroll in the Virginia Address Confidentiality Program first so your address stays protected. Use the substitute address from the program on all court forms and filings.

What is a protective order?

A protective order is a court order that protects you from further abuse. It can make your spouse stop contacting you, stay away from your home, or leave a shared residence. You can ask for a protective order whether or not you have filed for divorce.

There are three types of protective orders in Virginia: Emergency, Preliminary, and Full (or Final). Each one works a little differently and lasts for different amounts of time. Read more about protective orders.

Do I have to go to mediation?

Courts sometimes tell divorcing couples to go to mediation. This is to try to reach an agreement about custody, visitation, support, and division of property outside of court. However, if there has been abuse in your relationship, mediation is generally not recommended.

You can ask the court not to refer you to mediation if there is a history of family abuse. You do not have to participate in mediation with someone who has abused you.

What about my children?

If you have children, their safety matters too. A protective order can include temporary arrangements for custody and visitation, while the divorce decree will provide for longer-term arrangements. 

The court will make decisions about children based on what is best for them.

Read more: Keeping Your Children Safe When Leaving an Abusive Situation

Should I document the abuse?

Documenting what has happened can help you in court.

If you have visible injuries, try to have photographs taken. Keep in mind that some injuries do not appear right away. It may take hours or days for bruising or other signs to show.

If you seek medical attention, you do not have to report the abuse to the police to get care. Facilities that provide domestic or sexual violence services are required to keep your records confidential.

If you do report to the police, an officer is required to offer to take you to a hospital or safe shelter, or to help arrange transportation, if you ask.

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