Virginia is one of the few U.S. states that still permit “fault” divorces. A “fault” divorce is based on bad behavior; one spouse must claim that the other was “at fault” for the divorce due to misconduct that resulted in the marriage’s breakdown.
Fault Divorce in Virginia
In Virginia, the most commonly used grounds for a fault-based divorce are:
Adultery
Adultery is a misdemeanor in Virginia, and it is grounds for divorce. A married person commits adultery when they engage in voluntary sexual contact with someone who is not their spouse. Adultery requires strict and conclusive proof that the other spouse had sexual contact with another person; and the evidence must be “clear and convincing.”
If you continue to have sexual contact with your spouse after learning of the transgression, you will not be able to apply for divorce based on adultery, as this is viewed as forgiveness.
You also cannot cite adultery as the reason for divorce if it occurred more than five years before you filed for divorce. (Va. Code Ann. § 20-94.)
Willful desertion or abandonment
Desertion is the intentional departure of a spouse from a marriage or refusal of intimacy against the other spouse’s wishes for at least one year. Desertion entails more than mere time off or a break from the marriage; it also calls for the intention to leave the marriage for good. One spouse must establish the following to prove desertion:
- The deserting spouse intended for the marriage to end
- The abandoned party did nothing to deserve their abandonment, and
- The desertion was against the deserted spouse’s wishes
Cruelty that causes the other spouse to have a rational fear of bodily injury (See Va. Code Ann. 20-91 (A).)
Cruelty is defined as the actions that cause bodily harm or make living together dangerous. Mental torment, repeated and relentless neglect, and humiliation can also reach the point of cruelty, but it must be severe enough to make the marriage unbearable.
In most cases, even saying things that are hurtful or disrespectful will not be enough to justify a divorce. Unless the act was so vicious that it put someone’s life in danger or brought on a reasonable fear of harm in the future, one act of cruelty is rarely grounds for divorce.
A felony conviction and incarceration as a result of a crime described as “moral turpitude”
If a spouse has been convicted of a crime and sentenced to more than two years of imprisonment for a crime that falls under moral turpitude, grounds for divorce exist based on criminal conviction.
Irreconcilable differences in a “no-fault” divorce
There is no specific behavior that leads to a “no-fault” divorce. The most common no-fault ground is “irreconcilable differences” (sometimes referred to as “irretrievable breakdown of the marriage”), which is a way of saying that the couple can’t get along anymore and there’s no hope of reconciliation. A no-fault divorce needs no other explanation.
Although Virginia law does not accept “irreconcilable differences” as a basis for a no-fault divorce, it does enable couples to get divorced if they can establish they’ve lived separate and apart for a set period of time: one year if they have children, or six months if they don’t and have a property settlement agreement to divide the marital estate in place.
Talk to a Virginia Divorce Attorney Today
Filing for divorce is a difficult and emotionally draining procedure. That’s why having an experienced family attorney on your side is necessary. We can help assess your case and guide you through this complex legal process.
Call Holcomb Law today at (757) 656-1000 to talk with an experienced family attorney or fill out our contact form.