When marriages break up, there is often a lot of talk about whose “fault” it is. But in the law, “fault” has a very specific meaning. While you or I might think a divorce is one spouse’s fault because he or she is a pathological liar, a terrible communicator, or just generally a jerk, in Virginia divorce law there are only four kinds of “fault”: Adultery, desertion, cruelty, and conviction of a felony with over one year of incarceration. These fault grounds are discussed more in this post. The other path to a final divorce is to live in separate residences for one year (or six months if there are no children and you have signed a separation agreement), at the end of which the court will grant a “no-fault” divorce based on the separation.
This begs the question: Does it matter whose fault it was? The answer, like so many things in the law, is “it depends.” There are two main ways that proving fault can make a difference in your divorce: The amount of time it takes, and the amount of money each party gets. Let’s talk about when fault matters and how it could affect your divorce in Virginia.
Some types of fault divorce can be granted sooner than a no-fault divorce. In cases where the grounds for divorce is adultery or conviction of a felony with one year of incarceration, there is no mandatory separation period before the divorce may be granted. In theory, a divorce on these grounds could be granted immediately.
In reality, though, it could very well take just as long., particularly in the case of adultery. This is because you must prove that the adultery happened by clear and convincing evidence, a high standard which requires that you gather evidence. In most cases this means going through the formal discovery process to get information from the other side, and possibly taking other steps such as hiring a private investigator. These steps can take months to complete, and you may well end up getting your final decree of divorce around the same time that you would have under the no-fault law.
Other fault grounds for divorce—cruelty and desertion—also have a one-year waiting period from when the incident occurred to when the divorce can be granted.
In Virginia divorce law, the judge can consider fault when deciding how to divide up the money and property, but fault is unlikely to make a large difference in the amount that the parties are awarded.
In the case of adultery, fault can make a big difference when it comes to spousal support. Under Virginia law, a spouse who committed adultery cannot get spousal support in Virginia unless depriving them of support would cause a “manifest injustice.”
Seek Wise Counsel
It’s important to discuss your case with an experienced family law attorney before filing. A good lawyer can give you advice on whether filing on fault grounds is worth it in your particular case, or whether you are likely to spend more money proving that the divorce is your spouse’s fault then you will get back from the court because of that fault.