Q: How do I start divorce proceedings while married, living together, with minor children when the spouse refuses to leave
I want to divorce my husband. He refuses to establish a separation date, so I can’t do a no fault divorce. We live in my fathers house, it’s paid off, and will come to me upon his death through inheritance. There is no established rental agreement. I believe my husbands plan is to wait until he passes, divorce me, and claim the house as marital property since we live in it. How do I start divorce proceedings when he refuses to leave and refuses to cooperate? There has been no physical abuse. There has been emotional, verbal, and financial abuse, which is hard to prove. Husband has taken all marital assets and put them all in his name, so I cannot access them.
A: There are a couple answers, and some of your fears are unfounded. The likely easiest is to file for separate maintenance and a landlord-tenant action to evict if needed. You do, however, need counsel to get all the facts and plan an appropriate strategy.
A Virginia resident can file for a divorce from bed and board immediately, based on either abandonment and desertion or cruelty and reasonable apprehension of bodily harm. Virginia recognizes contructive desertion, which is essentially a desertion of the marital relationship while the parties still reside under the same roof. Cruelty includes not only physical abuse, but also psychological abuse. As part of the pendente lite or temporary relief available, a spouse may request exclusive possession of the marital residence. After the parties have lived separate and apart for at least a year, a spouse can amend the grounds of divorce to a divorce from the bonds of matrimony on the same fault grounds, or for a no-fault divorce based on a one year separation.
Anyone contemplating separation or divorce in Virginia should consult with an experienced Virginia divorce lawyer.
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