Grounds for Divorce in Virginia

To get a divorce in any state, you must have "legal grounds"—a specific reason or reasons—for why your marriage is ending. Before filing a divorce in Virginia, it's helpful to understand what the state's grounds for divorce are, how to decide which ground (or grounds) apply to your divorce, and when you must decide which ground or grounds to move forward with.

What Are "Legal Grounds" for Divorce?

When you prepare your divorce petition (the formal application for divorce), you must provide the court with a reason, or "legal grounds," for why you're seeking a divorce. Some states allow parties to file for divorce on fault-based grounds, meaning you claim that your spouse's actions during the marriage caused the divorce. Every state that allows fault-based divorce has its own list of allowed grounds for divorce. The most common include abandonment, addiction, and adultery.

If you don't have a specific fault reason for your divorce, there's no need to panic. All states allow some form of "no-fault" divorce. In most states, you can get a no-fault divorce based on either:

• irreconcilable differences (meaning the spouses don't get along anymore, and there's no chance for a reconciliation), or
• a period of separation (for example, because the spouses have lived separate and apart for more than a year).

One of the most attractive features of no-fault divorce is that neither spouse needs to go into the details of the marriage or place blame on the other. Arguing a fault-based divorce will likely result in the divorce taking longer to finalize and increase the overall cost of your divorce.

What Are the Grounds for Divorce in Virginia?

Virginia allows both no-fault and fault-based divorces.

No-Fault Divorce in Virginia

Virginia has only one no-fault ground for divorce: separation. Couples who wish to qualify for a no-fault divorce must prove that they've lived separate and apart without cohabitation (sexual relations) for a continuous period of at least one year. (Va. Code § 20-91(A)(9) (2022).)

Under certain conditions, the court can shorten the separation period to six months. In order to qualify for this shorter time frame, the couple must have entered into a separation agreement, and there must be no minor children either born of the parties, born of either party and adopted by the other, or adopted by both parties. (Va. Code § 20-91(A)(9) (2022).)

Uncontested Divorce in Virginia

It's important to remember that a no-fault divorce isn't necessarily an uncontested divorce. The ground for divorce is only one aspect of the process. For example, you might be filing for divorce on the ground that you're separated, but disagree with your spouse on issues such as spousal support (alimony), division of property and debt, child custody, and child support. If you disagree with your spouse on any issue, your divorce will be contested.

Fault-Based Divorce in Virginia

The grounds for a fault-based divorce in Virginia are:

• Adultery. Adultery is the act of having voluntary sexual intercourse with someone who's not your spouse. You can't file for divorce based on adultery if you continue to cohabitate with your spouse after you learned about the transgression. Nor can you use that ground if the misconduct occurred more than five years before filing for divorce. (Va. Code § 20-94 (2022).)
• Sodomy or buggery committed outside the marriage. These grounds are not used very frequently; sodomy is oral or anal intercourse with another person, and buggery is sexual intercourse with an animal.
• Conviction after marriage of either spouse for a felony. The spouse must be sentenced to (and be in) confinement for more than one year. If the spouses resume cohabitation, neither spouse will be able to claim this ground for divorce.
• Willful desertion or abandonment for at least a year. Desertion is intentionally leaving the marriage against the wishes of the other spouse. ("Desertion" and "abandonment" are often used to describe the same thing.) It's not just taking a trip or break from the marriage—it requires an intent to depart permanently. A spouse must prove that the:
  • deserting spouse's intent was to end the marriage, and
  • desertion was against the wishes of the deserted spouse.

If both spouses agree to separate, neither can allege desertion later. So, if you know your spouse is thinking about leaving, and you want to claim desertion, don't agree to the separation. Or, if you're contemplating leaving the marital residence, consider consulting an attorney first—even with good reason, leaving the marital residence can sometimes hurt you when it comes to property division, alimony, and custody determination. And, if you leave, you might lose access to important financial records and other documents kept in the home.

• Cruelty. Cruelty usually involves violence or fear of violence. Spouses alleging fear of cruelty must prove that it was reasonable for them to fear either harm to their mental state or physical well-being. Acts of cruelty are usually cumulative, which each act adding on to the overall severity of the behavior. However, proof of a single shocking or vile incident can be sufficient to prove cruelty.

(Va. Code § 20-91(A) (2022).)

Is a Fault-Based Divorce Worth It in My Case?

There's often a downside to using fault-based grounds in a divorce. For one thing, proving fault can be burdensome. It increases expenses, including attorneys' fees and will almost invariably ratchet up stress levels. You might need to bring witnesses into court to help substantiate your claims, which could be a major inconvenience.

In many states there's normally no legal or financial benefit to pursuing a fault divorce (unless a particular type of fault could be relevant to a parent's fitness for custody). However, in Virginia, proving that your spouse was at fault for the divorce might result in a financial benefit in a few circumstances:

• Determining alimony. In Virginia, a spouse who is found guilty of adultery can't receive alimony (spousal support). There is an exception to this rule, though: If the adulterous spouse presents clear and convincing evidence that denying support would be manifestly unjust (based on the respective degrees of fault during the marriage and the couple's economic circumstances), the court can order spousal support. (Va. Code § 20-107.1(B) (2022).)

The court can also take the other fault-based grounds into consideration when it decides spousal support. However, unlike adultery, they won't automatically result in a denial of support. (Va. Code § 20-107.1(E) (2022).)

• Distributing marital property. Virginia courts can also consider fault-based reasons for the divorce when determining the distribution of marital property. The fault of the spouse is just one of the many criteria the court will consider, though. (Va. Code § 20-107.3(E) (2022).)

Before you file for a fault-based divorce, you should consider whether there is any benefit in doing so. Consulting with a local family law attorney should help you understand whether a fault-based divorce makes sense in your case.

You might also want to consider using an alternative dispute resolution (ADR) method, such as mediation, as a means of settling your marital issues. Divorce mediators are aware of the applicable family laws in your state, and addressing your case in the less formal environment of the mediator's office, rather than a courthouse, can go a long way toward finding a mutually-acceptable resolution of your issues, with less angst and less expense.

What Kind of Proof Is Required to Get a Fault-Based Divorce in Virginia?

All grounds for divorce, including separation, must be supported by evidence, such as an independent witness who personally knows about the situation.

How strong your evidence must be depends on the ground on which you're basing your divorce. For example, you must have "clear and convincing" evidence to demonstrate adultery—it must produce in the mind of the judge or the jury a firm belief or conviction that the party committed adultery. (Watts v. Watts, 581 S.E.2d 224 (Va. Ct. App. 2003).)

The standard of proof for the other grounds for divorce in Virginia, such as desertion, cruelty, and separation, is a "preponderance of the evidence." This standard is easier to meet than "clear and convincing," and usually simply requires a witness or even your own sworn testimony.

How Long Does It Take to Get a Divorce in Virginia?

Unlike some other states, Virginia doesn't have a mandatory waiting period between when you file your divorce petition and when the court can begin processing the case. So how long your divorce will take depends on whether it's contested (contested divorces take longer than uncontested ones), and how busy the court is. You can ask the clerk of the court how long it's taking the court to process divorces on its calendar.

A Word About Annulments in Virginia

In certain cases, a spouse might have grounds for an annulment of the marriage. An annulment is different from divorce, and might be appropriate when the circumstances surrounding the marriage render it void (invalid).

An example would be where a spouse was still legally married to someone else at the time of the marriage (bigamy). The law regarding annulment can be quite complex, so you'd be wise to consult a local divorce lawyer before taking any action.