Felony Conviction Divorce Lawyer Albemarle County, VA
When a spouse is convicted of a felony in Virginia and sentenced to confinement for more than one year, the other spouse may seek a divorce on fault grounds under Va. Code § 20-91. This ground—one of several fault-based options—does not require the typical separation period that no-fault divorce demands. For residents of Albemarle County, including Charlottesville, Crozet, Ivy, North Garden, and surrounding communities, a felony conviction divorce is filed in the Albemarle County Circuit Court at 350 Park Street. Whether you are the spouse looking to end the marriage or the incarcerated spouse facing the proceeding, understanding your rights is essential. The procedural path differs from no-fault divorce and presents unique strategic considerations. Reach Law Offices Of SRIS, P.C. at (888) 437-7747 to discuss your situation. Law Offices Of SRIS, P.C. – Advocacy Without Borders.
How a Felony Conviction Can Serve as a Ground for Divorce in Virginia
Virginia law recognizes several fault grounds for divorce, one of which is the conviction of a spouse for a felony, followed by at least one year of confinement. Unlike no-fault divorce, which requires a six-month or one-year separation, a divorce filed on this fault ground does not require a waiting period once the statutory conditions are met. The spouse filing for divorce must present evidence of a final felony conviction and demonstrate that the convicted spouse has been sentenced to confinement of more than one year, with at least that period of time actually served. The Albemarle County Circuit Court has exclusive jurisdiction over the divorce itself, while related custody or support matters may be heard in the Albemarle County Juvenile and Domestic Relations District Court. An attorney can help gather the necessary court records and ensure the complaint properly invokes Va. Code § 20-91.
For the spouse facing divorce proceedings while incarcerated, the law still provides procedural rights. The incarcerated spouse is entitled to notice, may file a responsive pleading, and can raise defenses—for example, challenging whether the conviction meets the statutory threshold or whether the marriage is otherwise still viable. Because an incarcerated litigant cannot typically appear in person, motions for telephonic or video participation must be arranged. The firm’s attorneys have experience coordinating with the Virginia Department of Corrections and the Albemarle County Sheriff’s Office to facilitate remote appearances when appropriate.
Frequently Asked Questions
1. Can I get a divorce in Virginia if my spouse is in prison for a felony?
Yes, a felony conviction resulting in incarceration for more than one year is a statutory fault ground for divorce under Virginia Code § 20-91. This ground permits the non-incarcerated spouse to file for divorce without waiting through the separation periods required for a no-fault divorce. The spouse seeking the divorce must prove the conviction and the sentence. Once those are established, the court may grant the divorce even if the incarcerated spouse objects. The case proceeds in the Albemarle County Circuit Court, and related issues such as custody, support, and property division are resolved in the same proceeding.
2. What must I prove to use the felony conviction ground for divorce?
You must show that your spouse was convicted of a felony in any jurisdiction and sentenced to confinement for more than one year, with at least some portion of that sentence served. A certified copy of the conviction order and a record from the correctional facility are typically sufficient. The conviction need not have occurred in Virginia; out-of-state or federal felony convictions qualify as well. The key is that the convicted spouse is actually confined for a period exceeding one year—not merely sentenced but probation-only. An experienced family law attorney can assess whether your specific circumstances satisfy the statutory elements.
3. Does the incarcerated spouse have any say in the divorce?
The incarcerated spouse retains the right to receive notice of the divorce action and to respond. While confinement limits practical participation, the court will generally allow the spouse to file an answer and, if requested, participate remotely by telephone or video conference. An incarcerated spouse may contest the divorce if, for example, the conviction is still under appeal or if the required one-year confinement period has not been met. The process for ensuring the incarcerated spouse’s procedural rights is more involved than in a typical default divorce, making legal guidance important for both parties.
4. Is a felony conviction divorce faster than a no-fault divorce?
It can be, because no waiting period of separation is required once the conviction and confinement threshold are met. A no-fault divorce under Va. Code § 20-91(9) requires a six-month separation with a signed agreement or a one-year separation without one. In contrast, a fault-ground divorce based on felony conviction can proceed as soon as the non-incarcerated spouse files and proves the elements. However, if the incarcerated spouse contests the divorce or custody and property issues are disputed, the case may still take several months to resolve through the Albemarle County Circuit Court’s calendar.
5. How does a felony conviction affect property division?
Virginia is an equitable distribution state; the fact of a felony conviction does not automatically dictate how property is divided, but it can be a factor the court considers. Under Va. Code § 20-107.3, the court weighs multiple factors in distributing marital property, including the circumstances and factors that contributed to the dissolution of the marriage. A felony conviction, particularly one that caused financial harm or led to the breakdown of the marital relationship, may influence the court’s determination. However, each case is fact-specific, and the mere existence of a conviction does not guarantee a particular outcome.
6. Will the incarcerated spouse lose custody of the children?
A felony conviction does not automatically terminate parental rights, but it is a factor in custody determinations. The Albemarle County Juvenile and Domestic Relations District Court or the Circuit Court, as part of the divorce, will evaluate the best interests of the child under Va. Code § 20-124.3. Incarceration obviously affects a parent’s ability to exercise physical custody and may impact visitation arrangements. The court will consider the length of the sentence, the nature of the crime, and the parent’s prior relationship with the child. Generally, a parent serving a lengthy prison term will not be awarded physical custody, but may still retain visitation rights and the ability to participate in major decisions.
7. What if the felony conviction is on appeal?
If the conviction is under appeal, the non-incarcerated spouse may still file for divorce, but the finality of the conviction can be contested. Virginia courts typically require a final judgment of conviction to satisfy the statutory ground. An appeal may delay the resolution of the divorce if the convicted spouse raises the pending appeal as a defense. The trial judge has discretion on whether to grant the divorce while the appeal is pending. The firm can evaluate whether it is prudent to proceed immediately or to wait for the appeal to conclude.
8. Can the divorce be blocked if the convicted spouse is released before the one-year confinement period ends?
If the spouse is released before serving at least one year of confinement, the felony conviction ground may no longer be available. The statute requires confinement for more than one year, and actual incarceration is key. A sentence of more than one year where the defendant serves only a fraction of that time—perhaps due to parole or suspended time—may not satisfy the ground. If the convicted spouse is released early, the spouse seeking divorce may need to rely on a different ground, such as no-fault separation, if the procedural posture allows.
9. How do I protect my rights if my spouse is using my felony conviction to divorce me?
You should consult with a family law attorney as soon as you receive notice of the divorce filing. While you cannot prevent the divorce from being granted if the statutory elements are met, you can take steps to protect your property interests, parenting rights, and any potential spousal support claim. The divorce may be litigated while you are incarcerated, and you have the right to participate. An attorney can arrange remote hearings, preserve your ability to challenge evidence, and ensure the court does not enter orders that unfairly prejudice your interests.
10. How do I get started with a felony conviction divorce in Albemarle County?
Begin by gathering the necessary documents—the final conviction order and proof of incarceration—and then contact a family law attorney to prepare and file the complaint. The complaint is filed in the Albemarle County Circuit Court. After filing, the incarcerated spouse must be served with process; a private process server or the sheriff’s office in the jurisdiction where the prison is located can typically facilitate this. From there, the case proceeds through the court’s docket. To discuss your specific circumstances and next steps, reach Law Offices Of SRIS, P.C. at (888) 437-7747.
About Mr. Sris and His Of Counsel Team
Mr. Sris, Owner and Founder of Law Offices Of SRIS, P.C., is a former prosecutor who has been practicing since 1997. Admitted in Virginia, Maryland, the District of Columbia, New Jersey, and New York, Mr. Sris has extensive experience handling divorce cases—both no-fault and fault-based—across the Commonwealth. Mr. Sris testified before the Virginia House Courts of Justice Committee in support of 2019 HB 635 (chief patron Del. David Bulova). Mr. Sris and his Of Counsel bring extensive combined legal experience. Results may vary. Attorneys with the firm appear regularly in Albemarle County courts and serve clients from the firm’s Richmond location.
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