The most common type of divorce in Virginia is a “no fault” divorce, or a divorce based on the length of time a couple has lived “separate and apart” from one another.
However, divorces can also be “fault-based.”
In a fault-based divorce, one spouse petitions to end their marriage because of the other, “at-fault” spouse’s actions.
If your spouse files for divorce in this way, you should (probably) prepare a defense to fight their accusations.
In most cases, your defense will be either procedural (such as attacking the fundamental elements of your spouse’s divorce petition) or based on conduct (such as if your spouse also holds guilt).
Further, there are two general reasons that you may want to defend yourself from fault-based accusations during a divorce:
- First, so you can avoid having a court record that states you’re an adulterer or abuser.
- Second (and more commonly), because fault-based determinations can affect various divorce-related issues such as property division and spousal support (“alimony”).
In this article, we’ll quickly explain eight of the most common defenses to fault-based accusations in Virginia.
However, please note that we’re simply outlining a few basic legal strategies that your attorney may bring up during your case.
They do not and will not apply in every situation.
If you’re on the receiving end of a fault-based divorce petition, it’s always wise to speak to an attorney about your options.
For more information on fault-based divorces specifically, see our article: “Should I file for a Fault-Based Divorce in Virginia?”
The Virginia Code outlines several ground rules that divorcing parties must follow to complete their divorce.
While it would be impossible to list every rule here, all you really need to know is that failing to follow the proper procedures can significantly weaken your divorce case.
In this fashion, “procedural” defenses tend to focus on how the accusing spouse filed for divorce.
For example, did they provide you with proper Service of Process when filing the divorce papers (i.e. did they “serve” you in the correct way)?
Could you argue that you weren’t actually married in the first place due to a void or voidable marriage?
Essentially, procedural defenses attempt to prove that your spouse’s methods are not appropriate for the situation, thus rendering their entire case pointless.
We’ll outline a few of the most common procedural defenses below.
1. They didn’t file in the right place (“jurisdiction”):
As specifically noted in the Virginia Code:
“No suit for annulling a marriage or for divorce shall be maintainable, unless one of the parties was at the time of the filing of the suit and had been for at least six months preceding the filing of the suit an actual bona fide resident and domiciliary of this Commonwealth.”Virginia Code § 20-97
Put another way, either you or your spouse must have been residents of Virginia for at least six months prior to the date of filing for a Virginia court to have jurisdiction over your case.
This is often the first thing that an attorney will confirm when planning a defense to a fault-based divorce action.
2. The marriage wasn’t valid to begin with (“void” and “voidable” marriages):
There’s no point to a fault-based divorce action if you and your spouse were never legally married in the first place.
In Virginia, “void” marriages are unions that were not legal in the first place, such as a marriage that is “void by age.”
Essentially, in order to file for divorce in Virginia, you must have had a valid marriage in the first place.
If you can show that your marriage was never legal, you can avoid all the complicated issues surrounding a divorce.
Another example in this vein would be if you or your spouse were already married at the time of your union.
This situation is especially common for individuals who were married in other countries before arriving in the United States.
3. Too much time has gone by (“statute of limitations”):
As noted above, one of the most common fault-based grounds for a divorce is adultery.
However, Virginia law places a five year statute of limitations on using adultery as the basis for your divorce.
If your spouse cannot prove that you committed adultery in the five years leading up to the institution of the suit, the court may decide against their fault-based action.
4. The issue has already gone to court (“res judicata“):
If you and your spouse have previously settled a litigated issue in court, you can invoke the doctrine of “res judicata” to ask the court to drop the motion.
Essentially, this doctrine is the “double jeopardy” of civil lawsuits, and bars individuals from seeking a second or subsequent civil action against the other party for the same issue.
Defenses Based on Conduct
Unlike the procedural defenses listed above, conduct-based defenses often draw from case law (“common law”) instead of actual sections in the Virginia Code.
In this way, these defenses are often incredibly case-specific, and their success rate can vary from court-to-court and judge-to-judge.
For this reason, I’d like to reiterate that you should only consider these defenses with the assistance of an experienced family law attorney.
The definitions below are purely for educational purposes.
5. Your spouse ok’d your actions (“connivance”):
As we’ve noted in another article:
“Connivance is the corrupt consent of, or procurement by, the innocent spouse to the wrongful conduct or marital fault of the wrongful spouse.”Virginia Divorce Laws
Essentially, this defense usually applies when the petitioning spouse at some point “consented” to the fault action of the other spouse.
Commonly, this occurs when one spouse is committing adultery.
For example, in the 1993 case Hollis v. Hollis, the wife sent flowers and a note to her husband and his mistress on their weekend getaway.
In the resulting Court of Appeals case, the court noted that,
“Her letters and the note accompanying the flowers amply support the finding that she encouraged, as well as consented to, the husband’s adulterous relationship.”Hollis v. Hollis, 16 Virginia Court of Appeals 74 (1993)
In this fashion, proving that your spouse “consented” to the fault is a relatively common defense to divorces based on the grounds of that particular fault.
6. Your spouse forgave you (“condonation” and resumed cohabitation):
As a slightly more common spin on the previous defense, condonation (sometimes called “resumed cohabitation”) is an assumed form of forgiveness to an act of adultery.
Specifically, if the accusing spouse engaged, voluntarily, in intercourse with you after they discovered an affair, the court will assume that your spouse “condoned” your behavior, and thus cannot use that fault as a basis for their divorce.
This is also the case if you and your spouse separate after one of you has an affair, but then resume cohabitation as a married couple.
7. Your spouse was “in on it” (“collusion”):
As defined by Merriam-Webster, collusion is, “[a] secret agreement or cooperation especially for an illegal or deceitful purpose.”
In the contexts of divorce law, collusion refers to any attempt to create a scenario that would constitute a fault-based divorce.
For example, if both spouses agree to stretch the facts and claim that one spouse abandoned the other for the purpose of speeding up their divorce, this “secret agreement” could lead to the divorce being thrown out on grounds of collusion.
If you decide at some point to come clean to the court about the collusion, you may be able to have the fault-based case dismissed.
8. Unclean hands (“recrimination”):
A fundamental element of any fault-based divorce is the idea that only an innocent, guilt-free party should be able to petition for this type of divorce.
“Recrimination,” then, is a defense that asserts both parties were at-fault for the divorce, and thus no one gets to benefit from a fault-based proceeding.
Put another way, if the accusing spouse has committed their own act of martial misconduct, you can argue that they cannot file for a fault-based divorce since they were at fault as well.
Being on the receiving end of a fault-based accusation can be a terrifying prospect.
Not only can it affect your personal and social life, but it can also have a profoundly negative effect on your divorce as well.
The sections above list a few common defenses to fault-based accusations in Virginia.
However, they are no substitute for the advice of an experienced family attorney.
Especially in fault-based divorce cases, you should always consult with an attorney as soon as possible after you receive the divorce paperwork.
Failing to do so could lead to significant setbacks not only in your case, but also in your future.