Virginia is among a handful of U.S. states that still allow "fault" divorces. A "fault" divorce is based on bad conduct; one spouse must allege that the other was at “fault” for the divorce, because of misconduct that led to the breakdown of the marriage. The fault grounds in Virginia include:
A “no-fault” divorce is not based on any particular conduct. The most common no-fault ground is “irreconcilable differences” (also called “irretrievable breakdown of the marriage”), which is just a fancy way of saying that the couple can’t get along anymore, and there’s no chance that they will get back together. There is no other explanation required for a no-fault divorce.
Although Virginia laws do not recognize the “irreconcilable differences” ground for a no-fault divorce, they do allow couples to get divorced if they can prove they’ve lived separate and apart for a certain period time: one year if they have children, or six months if there are no children involved.
Cruelty usually involves violence, or fear of violence. Spouses alleging cruelty must also prove reasonable apprehension (fear) of bodily harm, which can include harm to one's mental state as well as one's physical well-being. Acts of cruelty are usually cumulative, augmented by each additional act, although proof of a single incident, which is so vile as to shock a court, may also be sufficient to show cruelty.
Desertion is intentionally leaving the marriage against the wishes of the other spouse. Desertion is not just taking a trip or a break from the marriage; desertion requires an intention to depart permanently. To prove desertion one spouse must prove the following:
In addition, if there is a mutual agreement to separate, you can’t allege desertion later. So, if you know your spouse is thinking about leaving, don't agree. If you are contemplating leaving the marital residence, consult an attorney first, if possible. Even if you’re justified, leaving the marital residence can have negative impacts on property division, alimony, and custody determinations. And, if you leave, you may lose access to important financial records and other documents kept in the home.
You may be justified in leaving the marriage if you’ve been told to get out, if you’ve been abused by your spouse, if the actions or conduct of your spouse are causing you to suffer health problems, and/or if the living conditions in the marriage are what a court might otherwise find intolerable.
You can charge your spouse with “constructive desertion” when your spouse has not, and perhaps will not, physically leave the marital residence, but through actions has essentially already left or deserted the marriage. For example, when a spouse has been abusive or cruel, and his or her behavior is so severe that the “innocent” spouse leaves the home to escape, the cruel spouse is said to be guilty of constructive desertion, even though that spouse remains in the home.
When your spouse is guilty of constructive desertion, it can be a justification for your leaving the home. However, unless you’re in danger, you should consult an attorney before leaving the marital home.
If you’re the victim of domestic violence, call the police for help. You may also want to check out the National Domestic Violence Hotline’s website, or contact them at 1-800-799-SAFE.
Proof of adultery is relevant to both the division of property and alimony in Virginia. When judges are deciding how best to divide marital property between divorcing spouses, they may consider all of the circumstances and factors which contributed to the dissolution of the marriage, including:
For a complete list of the factors courts consider when dividing marital property, see VA Code Ann. § 20-107.3 (E).
Similarly, when judges are determining whether to award alimony (also called “spousal support” or “maintenance”), they may consider the cause of the divorce, specifically including adultery. So, for example, if a cheating spouse asks for alimony, the judge may deny that request based on the spouse’s bad conduct.
For a complete list of factors courts consider when awarding alimony, see VA Code Ann. § 20-107.1.
All grounds for divorce, including separation, must be corroborated by evidence, such as an independent witness who knows of the situation by means other than your telling the witness what happened. The standard of proof for adultery is clear and convincing evidence, which usually requires hiring a detective to prove your spouse had the “inclination and opportunity” to commit adultery. Inclination can be a single hug or a kiss in public, and opportunity is usually spending the night with someone in a room or residence without other people around.
The standard of proof for the other fault grounds of desertion and cruelty and for a divorce based on separation is a preponderance of the evidence standard; you must have an independent witness in addition to your own testimony to verify the facts.
For divorces based upon either desertion or cruelty, a one year period of physical separation is required to finalize the divorce. There is no waiting period required for adultery; upon proof of adultery, the court can grant an immediate divorce. For divorces based on separation, the spouses must live separate and apart for a period of one year (six months if there are no minor children).