William & Mary Law Review William & Mary Law Review
Volume
3 (1961-1962)
Issue 1
Article 11
October 1961
Some Statistics and Comments on the Statutory Grounds for Some Statistics and Comments on the Statutory Grounds for
Divorce in Virginia Divorce in Virginia
Alexander J. Michalos
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Alexander J. Michalos,
Some Statistics and Comments on the Statutory Grounds for Divorce in
Virginia
, 3 Wm. & Mary L. Rev. 181 (1961), https://scholarship.law.wm.edu/wmlr/vol3/iss1/11
Copyright c 1961 by the authors. This article is brought to you by the William & Mary Law School Scholarship
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Noms
SOME
STATISTICS
AND
COMMENTS
ON
THE
STATUTORY
GROUNDS
FOR
DIVORCE
IN
VIRGINIA
Virginia
law
as
it
stands
today
makes
it
difficult
to
obtain
a
divorce
on
any
ground
other
than
desertion.'
In
fact,
the
common
grounds
of
cruelty,
drunkenness,
and
incompatibility
are
simply
not
available
to
one
who
is
seeking
an
outright
final
a
vinerdo
divorce.
2
And
in
the
Virginia
divorce
cases
based
on
adultery,
the
courts
have
been
very
stringent
in
their
requirement
of
proof.
3
But
allegations
of
desertion are
relatively
simple
to
formulate
and
their
proof
is
easy
to
sustain.
In
addition
to
the
formal
statutory
requirement
of
residency,
4
a
complainant
generally
needs merely
to
allege
desertion
by
the
spouse,
and
upon
corroboration
by
a
relative
or
friend,
the
complainant
is
granted
an
avineulo
divorce.
5
The
process
is
virtually
automatic.
As
might
be
expected
from this
status
of
the
law,
the number
of
divorces
granted
on
the
grounds
of
desertion
is
far in
excess
of
those
obtained on
all
other
grounds
taken
together.
A
statistical
sampling
of
various
areas
in
Virginia
for
1958
dearly
shows
this
overwhelming
preponderance:
TABLE
I.
Divorces
Granted
in
Virginia,
19586
Imprison-
Misc.
Desertion
Adultery
ment
Grounds
Total
Virginia
................
6,184
247
102
11
6,544
1Va.
Code
Ann.
§
20-91
(1960
RepI.
vol.).
2
Va. Code
Ann. §
20-95
(1960
Repl.
vol.).
3
See,
e.g.,
Haskins
v.
Haskins,
188
Va.
525,
50
S.E.
2d
437
(1948).
In
this
case,
Respondent
on
several
evenings
had
called
at
a
woman's apartment,
arriving
early
in
the
evening
and
remaining
until
about
midnight.
Detec-
tives
testified
that
at
ie
during
these
evenig
all
lights
were
out
in
the
apartment.
In
denying
a
divorce,
the
court
said:".
if
the
evidence
were
given
all
the
weight
to
which
it
was
entitled,
and
all
reasonable
inferences
therefrom
were
accorded
defendant
[sic],
yet
to
the
guarded
discretion
and
judgment
of
a
reasonable
man
it
fell
short
of proof of plaintiff's
adultery
because
it
failed
to
point
with
reasonable
certainty
to
a
conclusion
of
guilt
and
left
one
groping
in
the
realm
of
surmise,
conjecture
and
speculation."
4
Va.
Code
Ann.
§
20-97
(1960
Repl.
vol.).
Domicile
and
residential require-
ments.
5
See, e.g.,
Miller
v.
Miller,
196
Va.
698,
85
S.E.
2d
211
(1957).
6
Bureau
of
Vital
Statistics,
Richmond, Va.
1961]
WILLIAM
AND
MAiy
LAw
REviEw
Some
Counties:
Accomack
..............................
Arlington
.................................
Charles
City
....................
Chesterfield
...........................
Dinwiddie
..............................
Essex
.....................................
Some
Cities:
Alexandria
..............................
Danville
................................
Hampton
.................................
N
orfolk
....................................
Richmond
..............................
W
illiamsburg
.....................
W
inchester
...........................
Compare this data
with
a
similar
statisical
sampling
of
other
jurisdictions,
and
the
lopsidedness
of
the
Virginia
pattern
becomes
even
more
apparent:
TABLE
II.
Divorces
and
Annulments
by
Legal
Grounds
for
Divorce,
19587
Adul-
Deser-
Drunken-
Misc.
State
tery
Bigamy
Cruelty
tion(a)
ness
Grounds(b)
Total
Alabama
..................
415
23
6,175
5,210
313
175
12,311
Georgia
.....................
31
2
4,977
1,207
198
1,560
7,975
Iowa
...........................
39
24
3,864
222
56
94
4,299
Oregon
........................
21
2
4,693 469
9
258
5,452
South
Dakota
1
5
508
69
6
52
641
Wisconsin
...............
30 74
3,946
200
6
243
4,499
(a)
Both constructive
and
willful.
(b)
Includes
conviction
of
crime,
fraud, insanity,
nonsupport,
and
under
age.
Although
it
is
beyond
the
scope
of
this
note
to
investigate
exhaustively
the
reasons
behind
this
inordinately
large
proportion
of
divorce
cases
based
on desertion,
some
suggestions
are
proffered
for
consideration.
First,
an
examination
of
the
divorce
cases
appealed
to
the
Supreme
Court
of
Virginia
8
shows
that
desertion
cases
are
less
likely
to
be
appealed,
and
where
they
are appealed,
they
are
less
likely
to
be
reversed.
From
1930
to
1960,
for
exam-
ple,
seven
out
of
thirteen
Virginia
adultery
cases
were
reversed
7
National
Office
of
Vital
Statistics.
8
Arrington
v.
Arrington,
196
Va.
86,
82
S.E.
2d
548
(1955).
"This
court
has
jurisdiction
to
review
by
appeal a
decree
of
the court
below
in
matters
of
divorce,
regardless
of
any
question of
the amount in
controversy."
[VOL.
3:166
Noms
on
appea
9
while eight
out
of
twenty-four
desertion
cases
were
reversed.'
°
This,
coupled
with
the
large ratio
of
desertion
cases
to
adultery
cases
at
the
lower
court
level,
as
reflected
by
TABLE
I
above,
would
tend
to
indicate
a
greater
resistance
on
the
part
of
a
respondent
to
a
charge
of
adulterous
acts
than
to
the
more
innocuous
charge
of
desertion.
Second,
there
is
the
obvious
social
stigma
and
embarrassment
connected
with
divorce
litiga-
tion,
which
a
complainant
would
naturally
desire
to
minimize.
A
complainant
would
therefore
be
hesitant
to allege
insanity,
conviction
of
a
crime,
or
one
of
the
more
sordid
grounds
in
order
to
obtain
a
divorce
decree
when
there
is
available
to
him
the
more
delicate
and, for
the
respondent,
the
more
palatable
ground
of
desertion.
Third,
and
perhaps most
significant
and
worthy
of
comment,
is
the fact
that
from
a
technical
and
procedural
stand-
point,
desertion
is
the
path
of
least
resistance
for
a
married
couple who
wish
to
seek
a
divorce,
no
matter
what
their
real
motives
may
be
for
desiring
it.
In
this
last
connection
it
would indeed
be
naive,
in
the
light
of
the
data
presented
in
TABLES
I
and
II,
to
contend
seriously
that
desertion
was
the
actual
basis
for
such
a
large
percentage
of
Virginia
divorces.
The
present
state
of
the
Virginia
divorce
law
virtually
encourages
collusion
on
the
part
of
couples
seeking
a
divorce,
and
little
ingenuity
is
needed
to
obtain
a
divorce
on
such
grounds."
In
fact,
it
would
be
reasonably
accurate
to
say
that
the
prime
requisites
for
a
divorce
today
in
Virginia
are
a
marriage
ceremony
and
a
few
hundred
dollars.
The
adversary
system
has clearly
become
a
legal
fiction,
and
the
trend
seems
to
indicate
that
Virginia
divorce
laws
will
become
even more
lenient
and
increasingly
susceptible
to
collusive
suits.
12
It
is
ridiculous
to
have
before
the
public
a
divorce
law
policy
that
invites
collusion
and
deceit.
To
allow
the
divorce
laws to
be
97
Va.
Digest
553,
and
Cum.
Supp.
at
p.
91
(Divorce,
Key
No.
129(1)).
107
Va. Digest
560,
and
Cum.
Supp.
at
p.
92
(Divorce,
Key
No.
133(1)).
l
t
he
legal
ethics
aspects
of
collusion
in
divorce
suits
are
examined
in
Drinker,
Problems
of
Professional
Ethics
in
Matrimonial
Litigation,
66
HARV.
L.
REV.
443
(1953).
12Va.
Code
Ann.
§§
20-91
and
20-118
(1960
RepI.
vol.).
Formerly,
§
20-118
provided
that
neither
party
could remarry
within
four
months
after
an
a
vinculo
decree
had
been
entered.
This
restriction
has
now
been
removed.
184
WILLIAM
AND
MARY
LAw
REvmw
[VOL.
3:166
so
easily
manipulated
by
those
who
desire
a
divorce
makes
the
proceedings
a
mockery
and
creates
a
general
disrespect
for
the
law. Statutes
which
allow
such
a
legal fiction
to
flourish
should
not
be
tolerated
in
an
area
of
law
that
so
vitally
affects
the
moral
fiber of
our
society.
ALEXANDER
J.
MICHALOS
