I am married and my husband has been incarcerated since March 2012. I want to file for separation in the Commonwealth of Virginia to protect my assets that I have gained since his incarceration.
The answer to your question depends on some information that we do not have. You would need to speak with a local family law attorney in your area and present them the specifics of your case to get a better answer. Some questions the attorney will have for you, which I do not recommend answering here, is whether you continued to live with your husband at any point after the conviction, the amount of visitation in the correctional facility, the willingness of your husband to get divorced, etc.
All of these questions involve complex legal issues, and it is advisable you seek independent legal counsel where you live.
This post is not intended to create an attorney-client relationship, nor should the information contained therein be considered as legal advice. Each case is unique, and posters should seek independent counsel to handle their legal problems. This post is merely intended to be educational in nature. I am not your attorney, nor do I agree to appear in court for you by posting this information.
Based on the length of his incarceration, you may have a valid fault based ground for divorce. As for "filing for separation," that's not really an option here in Virginia like it may be in other states. You can, however, take steps to protect yourself and your assets. Please consider contacting a family law attorney in your city to review your options.
Your question has several different legal issues going on in it, and it would be ideal to have an attorney go over your specific case to give you specific legal advice. Every case is unique and deeply personal, and every little fact can influence what the best course of action is. Mr. Kreitzer is correct in that an attorney would need case-specific information, that should not be posted in a public forum such as this, in order to answer that question.
Generally, in Virginia, a person does not file a civil action to become legally separated as they may be able to in other states. While the word is a legal term, in Virginia it has more to do with the status of the parties and their living arrangements than it does as a marital status. Virginia Code Section 20-91 addresses the causes for divorce in Virginia, and reading it may assist you in your case.
Finding an attorney with expertise in the area of divorce law would be helpful to your case. Just as important, finding an attorney that works well with you and your style of communicating may also help your situation.
Please note that addressing your issue does not create an attorney-client relationship, and I am not providing legal advice. Rather, I am providing general information about the legal process. I encourage you to personally contact an attorney who practices in the area of law in order to provide all relevant information before taking any action.
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