Grounds for Divorce in Virginia

Learn about the grounds for divorce in Virginia.

By , Retired Judge

What are "Legal Grounds" for Divorce?

When you prepare your divorce petition (the formal application for divorce), you must list a specific reason, or "legal grounds," for the request. Some states allow parties to file for divorce based on fault, meaning you claim that your spouse's actions during the marriage caused the divorce. Fault grounds vary by state, but 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. The classic no-fault divorce is typically based on the couple's irreconcilable differences, meaning the spouses don't get along anymore, and there's no chance for a reconciliation.

Many states also allow spouses to base their divorce on a separation for a certain amount of time.

One of the most attractive features of the no-fault divorce (and divorce based on separation) is that neither spouse needs to go into the details of the marriage or place blame on the other. Pointing fingers at your spouse will likely create conflict and increase tension.

What Grounds Will the Court Accept in Virginia?

Virginia is a hybrid divorce state, meaning you can file for divorce if you and your spouse can meet the separation requirements (no-fault) or, you can ask for a divorce if your spouse is guilty of marital misconduct (fault).

No-fault Divorce in Virginia

When it comes to no-fault divorce, Virginia has only one viable ground- divorce based on 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.

Under certain conditions, the court can pare that one-year period down 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 born of the marriage. (Va. Code Ann. § 20-91 (A).)

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. You'll typically be addressing other issues, such as spousal support (alimony), division of property and debt, child custody, and child support. However, if you've entered into a separation agreement, as referenced above, you'll have addressed and settled these issues already, which normally allows you to conclude your divorce much faster than when those issues remain unresolved.

Fault Divorce in Virginia

The acceptable fault-based reasons for divorce in Virginia are:

  • adultery
  • sodomy committed outside the marriage
  • conviction of a felony (under certain conditions)
  • willful desertion or abandonment for at least one year, and
  • cruelty by one spouse that causes the other spouse to have reasonable fear of bodily harm. (Va. Code Ann. § 20-91 (A).)

Be aware that you can't file for divorce based on adultery if you continued 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 Ann. § 20-94.)

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

There's often a downside to using fault-based grounds. For one thing, proving fault can be burdensome. It increases expenses, including attorneys' fees and will almost invariably ratchet up stress levels. You may 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 there may be a financial benefit to a fault divorce.

In Virginia, if a spouse is guilty of adultery, a court will bar that spouse from receiving alimony (spousal support). The only exception is if there's clear and convincing evidence that denying support would be manifestly unjust, based upon the respective degrees of fault during the marriage and the couple's economic circumstances. (Va. Code Ann. § 20-107.1 (B).)

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

The potential impact of fault-based grounds doesn't end there. The court can also consider them in determining the distribution of marital property. (Va. Code Ann. § 20-107.3 (E).)

As compared to other states, Virginia's use of fault when it comes to deciding spousal support and property distribution would seem to increase the chances of spouses relying on fault-based grounds. This could lead to lengthier and more contentious divorces. Drawn-out battles take a toll on all concerned, including children.

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 may 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 expense.

A Word About Annulments

In certain cases, a spouse might have grounds for an annulment of the marriage. An annulment is different from divorce, and may be appropriate where 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.

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