Can the 1 year separation period be waived if my husband has committed adultery and is in jail for statutory rape and child pornography?

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Can the 1 year separation period be waived if my husband has committed adultery and is in jail for statutory rape and child pornography?

My husband has cheated on me over 20 times in the 2 years we have been married. He is now sitting in prison for statutory rape of a 15 year old girl and for looking at child pornography. I have proof of the adultery. We have 1 child together. We have lived separately for over a year but there were times that he came to visit his daughter and even stayed the night (this was before I knew about the child pornography) and he has been in jail for 5 months. I want a divorce now. Is there anyway to divorce this man now instead of waiting another 7 months?

Asked on August 21, 2011 Virginia


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

I am so sorry for your situation.  When you say "waiting in jail" do you mean that he has been convicted?  Here are what Virginia finds as acceptable grounds for divorce:

1) Adultery; or for sodomy or buggery committed outside the marriage;

(2) Where either of the parties subsequent to the marriage has been convicted of a felony, sentenced to confinement for more than one year and confined for such felony subsequent to such conviction, and cohabitation has not been resumed after knowledge of such confinement (in which case no pardon granted to the party so sentenced shall restore such party to his or her conjugal rights);

(3) Where either party has been guilty of cruelty, caused reasonable apprehension of bodily hurt, or willfully deserted or abandoned the other, such divorce may be decreed to the innocent party after a period of one year from the date of such act; or

(4) 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.

[Code of Virginia; Title 20, Section 20-91].

So if he has not been convicted and sentenced as in #2 above but you have proof of the adultery in #1 above then I would say that you an file now.  Serving him is easy as you know where he is.  I would also speak with your attorney about the possibility of severing his parental rights to protect your child.  Good luck.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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