Should I File for a Fault-Based Divorce in Virginia?

Figuring out whether or not you can file for a fault-based divorce is tough. For this reason, there are several strategies you should keep in mind.

If you are pursuing a divorce in Virginia, you have the option to file for either a “fault” divorce or a “no-fault” divorce.

A no-fault divorce works well for marriages that end without contest, with both parties agreeing to part ways without arguing over certain elements of the divorce.

In these cases, there may be some negotiation about alimony or splitting assets, but both people agree that no one is truly at fault for the end of the marriage.

However, in a marriage marred by an offense such as adultery, the other partner may file for a fault-based divorce. This basically means that one spouse is alledging that the divorce is due to the misconduct of the other spouse.

In this article, we’ll discuss the details and advantages of filing for a fault divorce.

What Exactly is a Fault-Based Divorce?

Dictionary page for divorce, two rings on page.

As stated above, Virginia residents may file for either a fault or no-fault divorce. In order to file for a fault-based divorce, the party petitioning for divorce must seek to end the marriage because one of the fault-based grounds allowed by Virginia law. These grounds are specifically outlined in the legal code.

In Virginia, the offenses that fit these requirements are:

  • Adultery
  • Abandonment, desertion (actual or “constructive”), or neglect
  • Cruelty
  • Conviction of a felony

Adultery

You cannot file for a fault-based divorce on suspicion alone. In order to file, you need concrete evidence that your spouse comitted adultery.

The Virginia Bar Association states that the evidence for adultery must be “strict, satisfactory, and conclusive.” This can include things such as the testimony of a witness or the findings of a private investigator.

Pictures of text messages, travel information, or other similar documentation can also be rather helpful when proving your case.

To file for divorce on these grounds, the adultery must be the cause of the termination of the marriage. This may seem redundant at first but is actually quite important. Essentially, this means that the actual instance (or instances) of adultery must be the primary reason for the split.

For example, if there is a significant lapse in time between the affair and your petition for divorce, this time gap might create issues in obtaining a divorce on the grounds of adultery.

Abandonment or Neglect

If one party leaves the home with the intent to desert the other person and end the marriage, they can be accused of abandonment. 

However, this accusation is tricky to prove in court, since there are exceptions. These exceptions can include situations such as:

  • One spouse unknowingly consented to the other’s act of leaving.
  • A spouse left because of either abuse or a credible fear of bodily harm.

For example, if a couple is having problems, and they discuss living apart for a while, this act doesn’t count as desertion. This is because the separation started by mutual consent.

Similarly, if a spouse can show that they left because they feared future abuse, the court might also decide that they didn’t abandon the marriage.

Cruelty

This accusation can only be made if the spouse fears bodily harm and feels unsafe in the home. 

You can make a case for mental or emotional cruelty, but it can be hard to prove and is not normally taken as grounds for divorce in Virginia.

Conviction of a Felony

If a spouse is convicted of a felony, the other spouse can file for divorce. 

You can only file under this ground if the person is actually serving time. If they were convicted, but let out on bail, you cannot file for a fault-based divorce under this ground.

Advantages of Filing for a Fault-Based Divorce

Young black couple arguing, wood wall in background.

Even if you feel that your spouse is at fault for ending your marriage, it’s important to consider both the advantages and disadvantages of filing for a fault divorce.

Advantages of a Virginia Fault-Based Divorce

There are several advantages you should consider before ruling out a fault-based divorce.

No Waiting Period – In a no-fault divorce in Virginia, the couple must live apart for a period of time before they can get a divorce.  If the couple has no minor children, they must wait six months.  If they have children under 18, they must live apart for a year.

However, for a spouse who files for divorce because of adultery or a felony conviction, there is no waiting period.  They can get a divorce right away.

Preference for Child Custody – When making decisions about custody of the children, the judge will try to rule in the best interest of the child.  The court will look less favorably on a spouse that has committed adultery.  The judge may look upon their actions and judgement as irresponsible and decide to award primary custody to the other parent.

Preference for Spousal Support – Fault is not the main factor in deciding the amount of spousal support, or alimony.  The judge determines the amount of spousal support mainly based upon several factors, such as:

  • Each person’s financial independence
  • Earning potential
  • The length of the marriage
  • The age of the spouses

However, under Virginia Code §20-107.1(E), a judge must also consider who is at fault for the divorce when deciding about the amount of spousal support.

Fault Can Affect the Division of Marital Assets – When deciding which of the marital assets will be awarded to whom, the judge will consider many different factors (Virginia Code §20-107.3(E)). 

One of the most important of these factors is the question of “who was at fault” for the dissolution of the marriage.

Disadvantages of a Fault-Based Divorce

Now that we’ve gone over the pros of filing a fault divorce, let’s talk about the disadvantages.

Your Spouse Might Decide to Fight the Accusation – As stated earlier, in the case of adultery you can get a divorce immediately, without having to separate and apart for an extended period of time.

However, the divorce itself may end up taking just as long because of the time you’ll have to spend in court proving the accusation. 

In effect, you’ll have to prove that your spouse is guilty of adultery.

If your spouse fights the charges, it will cause you to spend more time and money in court and legal fees.

The “Blame Game” Can Get Ugly – In a divorce, tensions can get very high. Some people fall into the trap of using a fault-based divorce to get revenge on their spouse.

Judges generally don’t take kindly to this, and the plan might backfire.

Alternatively, some people just want the entire process to be over, and don’t want to argue their case in court at all. Instead, these individuals elect to pursue a no-fault divorce and just move on with their lives.

Conclusion

beautiful girl leaning on sofa and using laptop

There are several reasons you can file for a fault-based divorce, such as adultery, abuse, and incarceration. 

It’s only a good idea to pursue a fault-based divorce if you can show evidence to convince a judge of grounds for the separation. If the judge finds your spouse to be at fault, you could get preference for custody of your children, spousal support, and the division of marital assets.

For this reason, having a strong argument will be critical when the time comes to argue your case in court. An experienced attorney can help you decide if you have a case strong enough to pursue a fault divorce.

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