Felony Conviction Divorce Lawyer Virginia, VA
Under Virginia law, a spouse’s felony conviction resulting in a sentence of confinement exceeding one year is a recognized fault ground for divorce. Va. Code § 20-91 expressly includes this as a basis for seeking a divorce from the bond of matrimony. When a marriage is affected by one party’s incarceration, the other spouse may pursue a fault-based divorce without the separation period required in no-fault cases. This distinction matters: a no-fault divorce in Virginia typically requires either six months of separation with a signed agreement and no minor children, or one year of separation otherwise. A fault-based divorce on felony conviction grounds carries no such waiting period. The action must be filed in the circuit court of the Virginia county or city where either party resides, as circuit courts hold exclusive original jurisdiction over all divorce proceedings under Va. Code § 20-96. Law Offices Of SRIS, P.C., founded in 1997, represents clients throughout Virginia in family law matters, including divorce actions based on felony conviction grounds. Mr. Sris, Owner and Founder, is a former prosecutor who practices in Virginia, Maryland, the District of Columbia, New Jersey, and New York. Reach our location at (888) 437-7747 to schedule a consultation. Law Offices Of SRIS, P.C. – Advocacy Without Borders.
What Felony Conviction Divorce Means in Virginia
Virginia is one of a limited number of states that recognize a spouse’s felony conviction and resulting incarceration as an independent fault ground for divorce. The operative language in Va. Code § 20-91 provides that a divorce from the bond of matrimony may be decreed where either party has been sentenced to confinement for more than one year following conviction of a felony. Once the sentence has been imposed and the convicted spouse is confined, the other spouse may initiate divorce proceedings immediately—there is no requirement to wait for the completion of the sentence or for any separation period to elapse.
Under Va. Code § 20-91, a spouse’s sentencing to confinement for more than one year following a felony conviction constitutes a fault ground for divorce in Virginia, requiring no separation waiting period before filing.
Source: Va. Code § 20-91. Virginia Code § 20-91
Reviewed by Mr. Sris, admitted in VA/MD/DC/NJ/NY.
This fault ground differs from other Virginia fault grounds such as adultery, cruelty, or desertion in one significant respect: the triggering event is a matter of public record. A criminal conviction and sentencing order are documented in court records, which can simplify the evidentiary burden compared to fault grounds that require proof of private conduct. Still, navigating a divorce where one spouse is incarcerated raises distinct procedural considerations—including service of process on an incarcerated individual, the practical challenges of negotiating a property settlement agreement when one party is confined, and the impact of incarceration on child custody and visitation determinations. Virginia circuit courts across the Commonwealth, from Fairfax County to Richmond to Virginia Beach, handle these matters under the same statutory framework, though local practices and docketing procedures vary by judicial circuit.
Virginia circuit courts hold exclusive original jurisdiction over all divorce proceedings under Va. Code § 20-96; the Juvenile and Domestic Relations District Courts handle related custody and support matters but cannot grant a divorce decree.
Source: Va. Code § 20-96. Virginia Code § 20-96
Reviewed by Mr. Sris, admitted in VA/MD/DC/NJ/NY.
How Mr. Sris and His Of Counsel Handle Felony Conviction Divorce Cases
When a client seeks a divorce based on a spouse’s felony conviction, the first step is a thorough review of the criminal case records. Confirming that the conviction is final and that the sentence exceeds one year of confinement is essential before filing. The Complaint for divorce is prepared and filed in the appropriate circuit court, citing Va. Code § 20-91 as the statutory basis. Service of process on an incarcerated spouse requires attention to institutional mailing procedures and may involve coordination with the facility where the spouse is held. If the incarcerated spouse cannot be located or declines to respond, the case may proceed through the applicable procedural mechanisms available under Virginia law.
Virginia is an equitable distribution state, meaning that marital property is divided fairly—though not necessarily equally—based on the factors enumerated in Va. Code § 20-107.3. Mr. Sris testified before the Virginia House Courts of Justice Committee in support of 2019 HB 635 (chief patron Del. David Bulova), which revised subsection (g) of that statute. His familiarity with Virginia’s equitable distribution framework informs the firm’s approach to property division, spousal support, and related financial issues in divorce cases. In a felony conviction divorce, the court may consider the circumstances surrounding the conviction and incarceration when weighing the statutory factors for property division and support. Child custody and visitation are determined separately under the trusted-interests-of-the-child standard set forth in Va. Code § 20-124.3, and a parent’s incarceration is one of many factors the court evaluates. Each case proceeds on its own facts, and the timeline depends on the court’s calendar, the complexity of the marital estate, and whether the parties can reach agreements on contested issues.
About Mr. Sris and His Of Counsel Team
Mr. Sris, Owner and Founder of Law Offices Of SRIS, P.C., has practiced law since 1997. A former prosecutor, he brings firsthand understanding of the criminal justice system to family law matters where a spouse’s criminal conviction is central to the divorce action. His experience with criminal procedure, sentencing, and court processes informs the firm’s handling of felony conviction divorce cases—particularly in evaluating the underlying criminal record, understanding the implications of incarceration on property and custody issues, and navigating the intersection of criminal and family court proceedings. Mr. Sris is admitted in Virginia, Maryland, the District of Columbia, New Jersey, and New York.
Mr. Sris and his Of Counsel bring over 120 years of combined legal experience. Results may vary. The Of Counsel team includes attorneys with backgrounds in prosecution, law enforcement, and complex litigation, providing knowledge that spans the procedural and practical dimensions of felony conviction divorce cases. The firm handles matters with attention to the statutory requirements, local court practices, and the personal circumstances that shape each client’s situation. Mr. Sris and his Of Counsel have documented 4,739+ case results across all practice areas since 1997. Results may vary.
Frequently Asked Questions
What is a felony conviction divorce in Virginia?
A felony conviction divorce in Virginia is a fault-based divorce granted when one spouse has been sentenced to confinement for more than one year following a felony conviction, as provided under Va. Code § 20-91. This ground allows the other spouse to file for divorce without waiting through a separation period. Virginia law treats this as a distinct fault ground, separate from adultery, cruelty, or desertion. The conviction must be final, and the sentence must exceed one year of confinement. The divorce action is filed in the circuit court of the locality where either party resides. Because the conviction and sentencing are matters of public record, proving this ground often involves submitting certified copies of the criminal judgment and sentencing order rather than presenting extensive testimonial evidence about marital conduct.
Do I need to wait for a separation period if I file for divorce based on my spouse’s felony conviction?
No, Virginia does not require a separation period when filing for divorce on the ground of a spouse’s felony conviction resulting in confinement for more than one year. This is one of the key differences between fault-based and no-fault divorce in Virginia. A no-fault divorce under Va. Code § 20-91(9) requires either six months of separation with a signed property settlement agreement and no minor children, or one year of separation otherwise. By contrast, a fault-based divorce on felony conviction grounds may be filed as soon as the spouse has been sentenced and confined. The court may proceed to hear the case on its merits without any waiting period tied to separation. For guidance on your specific situation, reach Law Offices Of SRIS, P.C. at (888) 437-7747.
How does a spouse’s incarceration affect property division in a Virginia divorce?
Incarceration does not automatically change how marital property is classified, but it can influence the equitable distribution analysis under Va. Code § 20-107.3. Virginia courts divide marital property based on fairness, considering factors such as the duration of the marriage, each spouse’s contributions to the acquisition and care of marital property, the circumstances that led to the dissolution of the marriage, and each party’s age and health. A felony conviction and resulting incarceration may be relevant to several of these factors. The court may also consider the practical challenges an incarcerated spouse faces in managing or preserving marital assets. Property division is determined on a case-by-case basis. Mr. Sris testified before the Virginia House Courts of Justice Committee in support of 2019 HB 635, which revised subsection (g) of Virginia’s equitable distribution statute, and the firm applies its understanding of this statutory framework to each client’s circumstances.
Can I get custody of my children if my spouse is incarcerated for a felony?
Yes, a parent whose spouse is incarcerated may seek custody, and Virginia courts determine custody based on the best interests of the child under Va. Code § 20-124.3, not on any automatic presumption tied to incarceration. The court evaluates ten statutory factors, including the relationship between each parent and the child, each parent’s ability to meet the child’s needs, and any history of family abuse. A spouse’s incarceration is relevant to the court’s analysis—particularly regarding the incarcerated parent’s ability to exercise custodial responsibilities—but it is only one factor among many. The court may grant sole custody to the non-incarcerated parent, order supervised visitation with the incarcerated parent where appropriate, or structure a parenting plan that accounts for the period of incarceration and eventual release. To discuss the details of your matter, contact Law Offices Of SRIS, P.C. at (888) 437-7747.
How do I start the felony conviction divorce process in Virginia?
Starting a felony conviction divorce in Virginia begins with consulting an attorney, gathering the relevant criminal case records, and preparing to file a Complaint in the appropriate circuit court. The Complaint must state the ground for divorce—citing Va. Code § 20-91 and the fact of the spouse’s felony conviction and confinement—along with the jurisdictional requirements, including that at least one party has been a resident and domiciliary of Virginia for at least six months under Va. Code § 20-97. Supporting documentation typically includes a certified copy of the conviction order and sentencing order. If the incarcerated spouse is expected to contest the divorce or raise issues about property division or custody, the case may involve motion practice, discovery, and hearings. The procedural path and overall timeline depend on the specific facts of the case, the court’s calendar, and whether the parties reach agreements on the issues in dispute. For a consultation, reach Mr. Sris and his Of Counsel at (888) 437-7747.
For additional information on Virginia divorce law, visit the Virginia Code Title 20 (Domestic Relations) and the Virginia Judicial System.
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