What is Divorce from Bed and Board in Virginia? 

Facing the end of a marriage or a significant separation is undeniably one of life’s most challenging transitions. The path forward can seem clouded by complex legal terms and procedures. In the Commonwealth of Virginia, one such legal avenue is the “Divorce from Bed and Board,” known formally by its Latin name, divorce a mensa et thoro. If you’re navigating separation in Virginia, it’s essential to grasp what this specific legal status entails.

Divorce from Bed and Board vs. Absolute Divorce in Virginia

A common point of confusion is distinguishing between a Divorce from Bed and Board (a mensa et thoro) and an Absolute Divorce (a vinculo matrimonii). The difference is fundamental and impacts your legal status, rights, and future options.

Divorce from Bed and Board (a mensa et thoro):

• Nature: A legal, court-ordered separation.
• Effect on Marriage: The marriage legally continues to exist. Parties are not divorced.
• Remarriage: Prohibited. Since you are still married, you cannot legally marry someone else.
• Grounds: Requires proof of specific fault grounds (cruelty, reasonable apprehension of bodily hurt, desertion/abandonment) under Virginia Code § 20-95.
• Property Division: Does not typically finalize the division of marital property and debts (Equitable Distribution). This is usually handled if/when an absolute divorce occurs. The court might make temporary orders about who uses certain property (like the marital home) during the separation.
• Purpose: To legally authorize spouses to live separately, establish terms for spousal support, child custody, and child support while fault grounds exist or before the separation period for an absolute divorce is met.

Absolute Divorce (a vinculo matrimonii):

• Nature: The final, legal termination of the marriage.
• Effect on Marriage: The marriage is completely dissolved. Parties are legally single again.
• Remarriage: Permitted. Once the final decree is entered, either party is free to remarry.
• Grounds: Can be based on fault grounds (adultery, felony conviction, cruelty, desertion after one year) OR no-fault grounds (living separate and apart continuously for one year, or six months if there are no minor children and the parties have a signed separation agreement) under Virginia Code § 20-91.
• Property Division: Finalizes the division of all marital property and debts through Equitable Distribution, governed by Virginia Code § 20-107.3.
• Purpose: To permanently end the marriage and resolve all associated legal issues definitively, including property, support, and allowing parties to move forward independently.

A significant feature linking the two is that a Divorce from Bed and Board can later be “merged” or converted into an Absolute Divorce. After a specific period (usually one year from the date of separation that led to a mensa decree), either party can petition the Virginia court to transform the legal separation into a final divorce. This provides a pathway for those who need the initial fault-based separation order to eventually achieve full dissolution of the marriage.

Grounds for Divorce from Bed and Board in Virginia: Fault is Required

Unlike seeking an absolute divorce based simply on living apart for the statutory period, obtaining a Divorce from Bed and Board hinges entirely on proving that your spouse committed specific “fault” acts. These grounds are strictly defined in Virginia Code § 20-95:

Cruelty:

This involves conduct by one spouse that endangers the physical or mental health of the other, making continued cohabitation unsafe or intolerable. It’s more than mere rudeness or incompatibility.

• Examples: Physical violence (hitting, pushing), threats of violence, patterns of severe verbal abuse, persistent harassment designed to inflict emotional distress, or behavior causing significant mental health deterioration. A single act might suffice if severe enough, but often, it involves a course of conduct. Virginia courts require proof, which can include testimony, medical records, police reports, or witness accounts. Corroboration, meaning supporting evidence beyond just your testimony, may sometimes be needed, especially if the defendant denies the allegations.

Reasonable Apprehension of Bodily Hurt:

This ground is closely tied to cruelty but focuses specifically on the fear of physical harm. Even if no actual physical violence has occurred, if one spouse’s actions, threats, or behavior create a genuine and justifiable fear in the other spouse that they are in danger of physical injury, this ground may apply.

• Examples: Brandishing a weapon threateningly, explicit threats to inflict harm, stalking behavior, or a history of volatility combined with recent menacing actions that make the other spouse legitimately fear for their safety. The fear must be “reasonable” – meaning a typical person in the same situation would also be afraid.

Willful Desertion or Abandonment:

This means one spouse has broken off marital cohabitation with the intent to end the marriage, against the will of the other spouse, and without legal justification.

• Actual Desertion: One spouse physically leaves the marital home without cause or consent, intending not to return to the marriage.
• Constructive Desertion: One spouse’s misconduct (such as cruelty) is so severe that it forces the other spouse to leave the marital home for their own safety or well-being. In this scenario, the law considers the spouse whose behavior caused the departure to be the one guilty of desertion.
• Elements: To prove desertion in Virginia, you generally need to show: cessation of cohabitation, intent to desert by the offending spouse, lack of consent from the innocent spouse, and lack of justification for the desertion. The desertion must typically be continuous.

Proving these fault grounds in a Virginia Circuit Court requires compelling evidence. An experienced family law attorney is invaluable in assessing whether your situation meets the legal standard for cruelty, apprehension of harm, or desertion, and in gathering and presenting the necessary proof effectively.

Consequences and Implications of a Divorce from Bed and Board Decree

A Divorce from Bed and Board decree carries significant weight and alters the legal relationship between spouses in several key ways, although it stops short of ending the marriage. Here’s a breakdown of the typical consequences in Virginia:

Legally Sanctioned Separate Living: The decree formally authorizes the parties to live separate and apart. This provides legal justification for the separation.

Financial Matters:

• Spousal Support (Alimony): The court has the authority to award spousal support to be paid by one spouse to the other as part of the decree. This can be for a defined duration or indefinitely, based on factors outlined in Virginia Code § 20-107.1 (needs, ability to pay, duration of marriage, grounds for divorce, etc.). Pendente lite support may also be awarded temporarily while the case is pending.
• Property Division: This is a critical point – a Divorce from Bed and Board generally does not finalize the division of marital assets and debts (Equitable Distribution). While temporary orders regarding the use of property (like the house or car) might be made, the ultimate ownership and division of marital property acquired during the marriage are typically deferred until an Absolute Divorce. Spouses might address property division in a separate, written Separation Agreement, but a mensa decree itself does not usually divide property under Virginia’s Equitable Distribution statute (§ 20-107.3).

Child Custody and Child Support: If the couple has minor children, the court can and typically will make orders regarding legal custody (decision-making authority), physical custody (where the child primarily resides), and visitation schedules. These decisions are based on the “best interests of the child” standard under Virginia law. The court will also establish child support obligations based on Virginia’s child support guidelines (Virginia Code § 20-108.2). These orders are legally binding.

Healthcare and Other Benefits: This area is complex. Because the parties remain legally married, eligibility for certain benefits tied to marital status might continue. However, this is highly dependent on the specific rules of the health insurance plan, employer policies, or government regulations (e.g., military benefits). Relying on a mensa decree to preserve benefits like health insurance is risky and often temporary; COBRA continuation coverage might be triggered, or employer plans may treat legal separation similarly to divorce for eligibility purposes. It requires careful investigation.

Inability to Remarry: As emphasized before, neither spouse can legally remarry while the Divorce from Bed and Board is in effect, because they are still married to each other.

Inheritance Rights: Generally, spouses retain the right to inherit from each other under Virginia’s intestacy laws (if one dies without a will) or under an existing will, until an Absolute Divorce decree is entered that terminates these rights. A Separation Agreement can sometimes address waiver of these rights.

Tax Filing Status: Your tax filing status might be affected. Consult with a tax professional, as rules for filing separately or as married filing separately can be complex during legal separation.

These consequences highlight that while a Divorce from Bed and Board provides structure and addresses immediate needs, it leaves the parties in a state of legal limbo regarding the finality of their marital status and property rights.

Why Choose Divorce from Bed and Board? Potential Reasons

Given that an Absolute Divorce provides finality, why might someone in Virginia specifically seek a Divorce from Bed and Board? Several potential reasons exist, though some are more common or practical than others:

• Need for Immediate Court Intervention: This is perhaps the most frequent practical reason. If a spouse has committed acts of cruelty or deserted the family, the innocent spouse may need immediate court orders for spousal support, child support, custody, or exclusive use of the home. They may not yet meet the one-year (or six-month) separation requirement for a no-fault Absolute Divorce. Filing for Divorce from Bed and Board allows them to seek necessary relief from the court based on the fault grounds without waiting.
• Religious Objections: For individuals whose religious beliefs prohibit or strongly discourage absolute divorce, a Divorce from Bed and Board offers a way to obtain legal separation, support, and custody orders from the court while technically remaining married according to civil law, potentially satisfying religious requirements.
• Maintaining Benefits (Use with Caution): Some believe this path preserves eligibility for benefits like health insurance or certain military benefits longer than an absolute divorce. However, as mentioned earlier, this is highly uncertain and depends entirely on specific plan rules. Many insurance plans treat legal separation the same as divorce for coverage termination. Relying on this strategy without confirming benefit rules is risky.
• Strategic Legal Positioning: In some cases, filing for Divorce from Bed and Board based on fault can be a strategic move. It formally establishes the fault grounds early in the legal process, which might provide leverage in negotiating a comprehensive settlement agreement covering all issues for a later uncontested Absolute Divorce. It also firmly establishes the court’s jurisdiction over the marital issues in Virginia.
• Time for Consideration (Less Common): While possible, using it purely as a “cooling-off” period before deciding on absolute divorce is less common than the reasons above. Separation agreements often serve this purpose more flexibly without requiring proof of fault in court.

The decision to pursue a Divorce from Bed and Board should be made carefully after weighing the potential benefits against the fact that it does not provide the finality of an Absolute Divorce.

Divorce in Virginia? Contact Pack Law Group Experienced Attorneys

Divorce from Bed and Board (a mensa et thoro) is a distinct legal action available under Virginia law. It is not a termination of the marriage but rather a court-ordered legal separation granted only upon proof of specific fault grounds: cruelty, reasonable apprehension of bodily hurt, or willful desertion/abandonment. 

The attorneys at Pack Law Group possess deep experience assisting clients throughout Virginia with the full spectrum of family law matters, including Divorce from Bed and Board, Absolute Divorce, negotiation of Separation Agreements, complex custody disputes, and financial support cases. We provide clear explanations and steadfast representation focused on achieving your goals. Don’t navigate this difficult time alone.

Contact us today for a confidential consultation to evaluate your specific situation and explore the best legal path forward for you in Virginia.