If you’re filing for divorce in Virginia, you may have the option of filing on fault-based grounds, unlike many jurisdictions where all divorce is handled on a “no-fault” basis. What’s the difference?
Filing for a fault divorce could provide certain advantages depending on your situation. You may be able to start the process sooner and could receive a better outcome with respect to property division or spousal support. If your spouse files for a fault-based divorce that you believe is unjustified, you should be prepared to counter the allegations to protect your rights. Either way, it is crucial to understand the difference between fault and no-fault divorce under Virginia law and to work with an attorney prepared to take advantage of the opportunities available in your situation.
You Need Grounds for Divorce in Virginia
Virginia’s divorce statute, VA. Code §20-91 specifies that certain grounds must be proven for any couple to obtain a divorce. Most of the justifications for divorce listed in the statute are fault-based, meaning that one member of the couple did something bad enough to justify dissolving the marriage.
The final justification for divorce is “living separate and apart.” Effectively, when couples choose this as the grounds for their divorce, they are seeking a “no-fault” divorce. A couple must live apart without interruption for at least six months to a year to use this as grounds for a divorce. This creates a waiting period for a no-fault divorce. That period can be as little as six months if the parties have a valid separation agreement and no minor children in common, or a full year in other circumstances.
Grounds for a Fault-Based Divorce in Virginia
Under the divorce statute, grounds for divorce other than living apart include:
- A felony conviction that results in more than one year of imprisonment
- Cruelty or creating a reasonable fear of bodily harm
- Willful desertion or abandonment
Proving that a spouse committed one of these acts can be considerably more difficult than simply demonstrating that a couple has lived apart, so it is important to collect and preserve evidence if you plan to file for a fault-based divorce. In particular, the requirements regarding desertion can be particularly challenging. For instance, a spouse cannot be accused of desertion if there has been any agreement to separate, and a spouse who leaves may be excused of desertion. A spouse who stays in the home may even be considered to have constructively deserted if they engaged in some form of abusive behavior. It is a good idea to seek advice from an experienced divorce attorney early on if you are considering a fault-based divorce.
The Effect of Fault on Spousal Support and Property Division in Virginia
Judges consider a spouse’s faulty conduct when determining whether to award alimony and how to divide marital property. Adultery, for example, can give a court reason to deny alimony unless a spouse can prove that undue hardship would result.
The same factors that provide grounds for a fault-based divorce also can provide a court reason to favor one spouse in a property award. Even if a spouse does not file for a fault-based divorce, it still may be worthwhile to collect and present evidence of wrongdoing to obtain a preferential outcome in other matters connected with the divorce.
Consult an Experienced Virginia Divorce Lawyer
Before filing for divorce in Virginia, it is a good idea to talk to a knowledgeable Virginia divorce lawyer who could explain the advantages and potential drawbacks of filing a fault-based divorce in your particular circumstances. For a confidential consultation with the experienced divorce team at DiPietro Law Group, PLLC, contact us now.