Can a husband who prevents his foreign born wife from entering the U.S. obtain a divorce in Virginia?
Not in the case of Subramanian v. Ravichandran, Case No. CL-2010-4118 (Va. App. 2012), where the Virginia Circuit Court judge denied a divorce to a husband who frustrated his wife’s re-entry into the United States, on the equitable grounds of unclean hands.
The parties were married in India and subsequently moved to Virginia, where the wife retained a H-4 Dependent Visa (meaning her visa for residence in Virginia and travel to and from the United States depended upon her husband). After approximately a year of marriage, the wife returned to India, and according to the husband, the parties intended the separation remain permanent. Two years later, the husband filed a complaint for divorce in Virginia, seeking a divorce on the grounds of desertion and/or mental cruelty, or alternatively, one year of separation, pursuant to Virginia Code §20-91(9). The wife filed a response to the complaint, and in her response she alleged that the husband was restricting her from entering the United States to contest the divorce. (Due to her H-4 visa, she could not return without the husband’s consent). The Circuit Court held a hearing where the husband presented evidence to obtain a divorce under Virginia Code §20-91(9), and during the hearing he admitted to refusing the wife’s re-entry into the country.
In determining whether to grant the divorce, the Circuit Court examined the issue of whether the husband was entitled to a divorce when he had admitted to restricting his wife’s entry into the United States to contest the divorce. According to the husband, his petition was simply an ex parte divorce action, and given that he is a Virginia resident and has met the statutory requirements of Virginia Code §20-91(9), the Court must enter the divorce, regardless of his wife’s absence and the cause for her absence. The Court noted that under Virginia Code§20-91(9), either spouse may petition for a divorce if the parties have lived separate and without cohabitation for a period in excess of a year. In addition, the Court may grant an ex parte divorce when the defendant is absent or the Court lacks jurisdiction. See Cook v. Cook, 18 Va. App. 726, 446 S.E.2d 894 (Va. Ct. App. 1994).
Here, the Court disagreed with the husband’s position on the issue and affirmed that this case was not an ex parte divorce, because the wife had filed an answer in which the wife expressed a desire to contest the divorce. Furthermore, it could not be an ex parte matter, because by filing her answer, the wife consented to the Court’s jurisdiction. See Nixon v. Rowland, 192 Va. 47 (1951)(holding that a general appearance in a case grants the court jurisdiction over the person). In addition, the Court stated that the wife’s absence and the reason for her absence were significant in determining whether to grant the divorce. As the Court noted, under Virginia law, a party coming before a court of equity must have clean hands, and that party must refrain from an inequitable or wrongful conduct in the subject or case at issue. Richards v. Musselman, 221 Va. 181, 267 S.E.2d 164 (1980) (noting that the Court may deny equitable relief to any party who comes to court with unclean hands). Because a divorce case is an equitable proceeding, it falls under the purview of this doctrine. See Dritselis v. Dritselis, 2005 Va. App. 451 (Va. Ct. App. 2005). Therefore, the husband’s actions played a role in determining whether he possessed clean hands before the court.
Upon a review of the evidence, the Circuit Court held that the husband did not have clean hands and, thus, was not entitled to the relief sought by his divorce action. Because the husband affirmatively restricted his wife’s re-entry to contest the divorce, he clearly acted wrongfully, and the doctrine of unclean hands applied. In addition to those reasons for denial of the husband’s petition, the Court affirmed that entry of a final divorce decree would prevent the wife from seeking either spousal support or equitable distribution. See Toomey v. Toomey, 251 Va. 168, 465 S.E.2d 838 (1996) (holding that the trial court loses jurisdiction to decide support issues twenty-one days after the final decree has been entered). In this case, that decision would foreclose any option for the wife to litigate those issues, because she could not gain access to the Court. This inequity and the husband’s unclean hands, therefore, gave the Circuit Court the basis for its denial of the husband’s divorce request under Virginia Code §20-91(9).
You should contact your Virginia divorce lawyer or Richmond divorce lawyer James H. Wilson, Jr., to discuss how actions leading to the filing of the divorce case may affect the outcome.