Divorce Information

Fault v. No-Fault Divorce in Virginia

In Virginia, there are two overall kinds of divorce: fault and no fault. In the majority of cases, a no fault divorce is going to be much easier, because it doesn’t require ample time in court to prove that fault grounds exist. This gets at the heart of the difference between these two types of divorce. To clarify, we’ll take a look at the details.

What is Fault?

Virginia is one of the only states in the US that still allows for “fault” divorces. A “fault” divorce is one based upon bad conduct on the part of one spouse or the other. In this case, one spouse alleges that the other is at fault for the divorce, meaning that his or her misconduct directly led to the breakdown of the marriage. Virginia allows for fault grounds to include adultery, a felony conviction and attendant confinement, and cruelty - the latter of which includes willful desertion or abandonment. This list is short and rather specific, so we’ll get into the details soon, elaborating on what truly constitutes fault. Beyond these specific grounds, you’re probably looking at a standard no fault divorce.

What is No Fault?

A standard “no-fault” divorce is one that’s not based on any specific conduct. Irreconcilable differences - basically, the couple cannot get along anymore and have decided there’s no chance to get back together - are the most commonly cited grounds for no fault divorce in Virginia. No further explanation is required in this case. Virginia law does not recognize irreconcilable differences for a no fault divorce, but it allows couples to get a divorce if they can prove that they’ve lived separately for a given period of time: six months with no kids, or a full year if they have children. Beyond this, no fault divorce is the same as a standard divorce in almost every other state.

Grounds for Fault Divorce

Now it’s time to elaborate on the different grounds for fault divorce in Virginia. As mentioned above, these grounds include adultery, felony conviction and confinement, and cruelty. The details here matter, so be sure to read on.

Adultery

This one should be pretty self-explanatory, but it’s important to spell it out. Adultery is when one spouse is cheating on the other, and is one of the fundamental reasons for divorce. As long as it can be proven, adultery is a quick trip through a fault divorce. During divorce proceedings, proof of adultery is relevant to both the division of property and setting of alimony in the state of Virginia. This means that judges may consider the factors that contributed to the divorce, including adultery. Of course, when the judge determines whether to award alimony, they can deny that request based on a given spouse’s bad conduct, so the street goes both ways.

Felony and Confinement

As grounds for divorce, a felony conviction and attendant confinement in prison is a pretty straightforward concept. A felony conviction is evidence of a major crime, and with it often comes a sizeable incarceration. This means that the spouse will be spending years behind bars, physically separated from the marriage. It’s a situation no one wants to go through, and thus is one of the major accepted grounds for a fault divorce in Virginia. There’s no two ways about it.

Cruelty

Cruelty is the most broad of all fault divorce grounds, encompassing an array of behaviors and actions. What constitutes cruelty in this case? Cruelty almost always involves violence, or at least, the fear and threat of violence. Any spouse alleging cruelty must prove reasonable fear of bodily harm, which can include harm to their mental state as well as their physical presence. In most cases, cruelty is a cumulative experience, adding up via acts small and large. However, in extreme cases, proof of a single incident may be sufficient to show cruelty as a cause. Under this umbrella, we also find desertion, also known as abandonment. Desertion is when one spouse intentionally leaves the marriage against the wishes of his or her partner. This means more a simple break from the marriage, requiring an intention for permanent departure. To prove desertion in court, you must show that the deserting spouse intended to end the marriage, that they did nothing to justify the desertion, and that this happened against your wishes. This means, of course, that if there’s a mutual agreement to separate, desertion cannot be alleged. However, desertion can be justified if you’ve been kicked out, abused, or are suffering as a result of your spouse’s actions or living conditions at home. You’ll want to consult your attorney right away if this is the case.

Proof is Required

For a fault divorce in Virginia, corroborating evidence must be presented. Depending on the grounds, this can take on different shapes. The standard of proof for adultery, for example, is clear and convincing evidence. This means hiring a detective to prove that your spouse has committed adultery; the detective will document any incidents of inclination - a hug or kiss in public - and opportunity - spending the night with the other person in a residence without other people around. For the other fault grounds, a simple preponderance of evidence is the standard. In this case, you’ll still need an independent witness in addition to your own testimony when it comes time for court. If you’re facing a fault divorce, know that a one-year period of physical separation is required to finalize when based upon desertion or cruelty. However, there is no waiting period required when adultery comes into play. In this case, once the proof is given, the court can grant an immediate divorce.