Divorce From Bed and Board or Divorce From the Bond of Matrimony?
Why to consider one over the other in VirginiaBy Super Lawyers staff | Reviewed by Canaan Suitt, J.D. | Last updated on May 2, 2023
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It is an unfortunate fact of life, but many marriages will end in separation or divorce. In Virginia, there are actually two kinds of divorce: one known as a “divorce from bed and board,” and another known as “divorce from the bond of matrimony.” Which of these processes an estranged couple will opt for depends on a number of factors.
Divorce From Bed and Board
Despite the use of the word divorce in the title, a divorce from bed and board is effectively a separation. It may also be thought of as a partial divorce (or limited divorce). The key difference between this and a “divorce from the bond of matrimony” is that the parties are not free to remarry.
Under Virginia law, a divorce from bed and board may be ordered by a judge based on certain legal grounds, such as “cruelty, reasonable apprehension of bodily hurt, willful desertion or abandonment,” (Code of Virginia § 20-95). Note that “desertion or abandonment” does not include a voluntary separation of the parties. Nor does “cruelty” typically cover situations where the spouses are arguing or say hurtful things to one another (sometimes called mental cruelty).
As noted above, a divorce from bed and board does not allow the estranged spouses to remarry. It is also different from an annulment. But it does largely function the same as regular divorce in all other aspects. A judge can decree the parties are “perpetually separated” and order a division of property. And if one year has passed since the date of separation, the court can merge the terms of the divorce from bed and board into a subsequent divorce from bond of matrimony decree.
“It’s not very common that someone actually gets a divorce based on [bed and board], but it is very common that someone files based on that, then merges it into a final divorce,” says Julie Hottle Day, a family law attorney at Culin, Sharp, Autry & Day in Fairfax.
Divorce From Bond of Matrimony
A divorce from bond of matrimony is an absolute divorce. That is to say, once granted, the parties are free to remarry. Historically, this type of divorce required one spouse to prove fault on the part of the other spouse, such as adultery or cruelty. Such divorces are still available in Virginia, but the law now recognizes divorce based on voluntary separation of the parties. (Code of Virginia § 20-91). This is more commonly known as no-fault divorce.
“The general rule for uncontested matters is that you’ve got to wait a year if it’s uncontested from the date of your separation to the time you can file. That’s fine, but what if you have things like support or custody, and you need relief? The answer to that is you can file for a bed-and-board divorce earlier than the one year,” Day says. “Though you still can’t get your divorce until later, you can get into court to get relief.”
If the couple have minor children, a no-fault divorce requires the parties to live separate and apart for at least one year without interruption. If there are no children, and the spouses have signed a separation agreement, this time period is reduced to six months. A separation agreement (also called a property settlement agreement) is essentially a legal contract between the parties that can address questions that would otherwise need to be resolved by a judge. This includes division of any marital property and debts, alimony, and child custody.
As a contract, a signed separation agreement can be enforced in court. If either party later seeks a divorce, either from bed and board or matrimony, the court can incorporate the terms of the separation agreement into its final decree. That said, the parties may later elect to reconcile or ask the court to modify any terms that affect minor children.
For more information on this area, see our overviews of family law, divorce law, and mediation and collaborative law, or consider reaching out to a reputable family law lawyer for legal advice.
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