One of the most common questions in learning about divorce in Virginia is whether or not Virginia is considered a “no-fault” state. The simple answer is “yes.”
The easiest way to describe “no-fault” is to discuss the term in ways many other jurisdictions do…namely by referring to is as “irreconcilable differences.” In other words, in cases where the parties do not want to prove a fault-based ground (such as adultery, cruelty, among others), one or both of the parties can proceed in a divorce action and ultimately be granted a divorce on a “no-fault ground.” In order to be granted a divorce on this basis, the parties need to be separated for a specific period of time and with the intent that the separation period be continuous, uninterrupted and permanent.
If there are no children and the parties have entered into a Separation Agreement, then the Separation Period only needs to be six months before the parties will be granted a divorce on this basis.
If there are minor children involved or if the parties have not entered into a Separation Agreement, then the Separation Period must be minimally one-year.
The Fault-based grounds for Divorce in Virginia are:
a. Adultery, Sodomy, or Buggery;
b. Felony Conviction and Confinement;
c. Cruelty, or causing reasonable apprehension of bodily hurt, after a period of 1 year from the date of the acts; and
d. Willful desertion or abandonment, after a period of 1 year from the act.
In order to be granted a Divorce on a fault-based ground, the evidence supporting the fault-based ground must be proven. You should consult with an attorney about the facts of your case and the burdens of proof required to be proven in court. Additionally, just because you cannot be granted a divorce for a period of 1-year following certain acts, does not mean that you cannot file for divorce and/or temporary support before the 1-year period. You most certainly should speak with an attorney to determine which course of action is best for you.
In order to prove adultery in a court of law, a party needs to have “clear and convincing evidence” against the other party. This is a high burden of proof. Unsupported allegations of misconduct or rumors are most likely not enough.
The other fault-based grounds besides Adultery require a lower burden of proof – namely a “preponderance of the evidence.” Preponderance of the evidence is a standard that basically means, “more likely than not.” Again, discuss with your attorney the facts of your case and how those facts relate to the law and burdens of proof required in your case. Just because these other fault-based grounds have a lower burden of proof than Adultery to be proven in a court of law, does not mean that the evidence can be weak. The facts of your case must support the allegations you bring in a court of law.
Does it matter which grounds I assert and should I file my case first?
Some folks wonder if it matters what ground they choose to file for Divorce and others wonder if it matters whether or not they are the first to file for divorce before their spouse.
Whether you are the first to file for divorce does not mean you will win or lose your case merely because of the fact you filed for divorce first. It will mean something procedurally in that the first person to initiate the lawsuit is the Plaintiff and the person answering the Complaint will be the Defendant. It can mean that one person gets to present evidence before the other as well. However, if one side has really good evidence, then there is likely no major advantage to filing first – though the person with the good evidence will likely want to file first.
As for the grounds for divorce, the fault based grounds can be important. With a fault-based ground, you may be able to get into the Circuit Court much quicker than waiting the 6 or 12 months to elapse prior to initiating a No-Fault divorce. However, if you do not have adequate proof for a fault-based ground and you choose to file in court anyway, your case may be dismissed and you may be stuck waiting the 6 or 12 months to be able to get back into court to file under a No-Fault case.
If you do not have a fault-based ground to assert and you have not been separated the requisite amount of time for a no-fault divorce case, you may be able to file in the Juvenile and Domestic Relations Court for temporary support – and this can also have delay implications as well. Again, discuss all possible strategies with an attorney and decide on the right course of action for your case.
Fault v. No-Fault – How do I decide what to do?
It is certainly understandable to be overwhelmed. There are many grounds for divorce and there are many ways to get a divorce. (Be sure to read the links, “The Divorce Process” and “Divorce” on this website to read about the various ways to get divorced in Virginia). There is often more than one right answer to boot. The good news is…with the help of an attorney who practices in the Family Law and Divorce practice area, you can easily find advice on the Divorce process and how your facts relate to any particular strategy. You have enough to worry about; you shouldn’t need to stress about the legal process as well. By hiring an attorney, you can get good counsel on the process and decide as a team how best to move forward. You can then focus on your finances, psychological well-being, and potentially the best interests of your children.