If you are the one filing for divorce, one of the first decisions that you and your divorce lawyer will make is whether to file on fault grounds, or whether to file a “no-fault” divorce. Of course, “fault” has a very different meaning in the law from how we talk about whose “fault” something is in everyday life. Let’s explore Virginia fault grounds for divorce and what they mean.
Virginia recognizes four main fault-based grounds for divorce: Adultery, desertion, cruelty, and felony conviction.
- Adultery – One of the most common reasons for divorce, the grounds of adultery requires little explanation. Legally speaking, it’s when a married person has sexual intercourse with someone other than his or her spouse. For the court to grant a divorce on the grounds of adultery, it must be proved by clear and convincing evidence, which is a high standard of proof. You can read more about adultery as a grounds for divorce here.
- Desertion – Desertion occurs when one spouse leaves the marital home without the other’s consent, with the intention to end the marriage. You can read more about adultery as a grounds for divorce here.
- Cruelty – Cruelty generally means acts of physical violence, although acts of emotional cruelty such as threats and humiliation may meet this standard in extreme cases. As with other grounds for divorce, proof of the cruelty alleged will be important in your case. If you are in a dangerous situation, your first priority should be getting yourself and your children safe. You can read more about cruelty as a grounds for divorce here.
- Felony Conviction with Incarceration – if your spouse has been convicted of a felony since you married and will be incarcerated for more than one year, this is a fault grounds for divorce. You can read more about felony conviction as a grounds for divorce here.
If you have lived separately from your spouse with no cohabitation for a year, you can get a no-fault divorce in Virginia. If you don’t have children, you can get a no-fault divorce after living apart for six months if you have made a written separation agreement. This is the most common grounds for divorce. It is also often the least expensive, because of the extra time it takes an attorney to gather evidence of fault and present it at a trial. Because every case is different, it’s important to talk with your divorce attorney about whether a fault or no-fault divorce is right for your situation.