When it comes to divorce, Virginia is one of the few states that still allows for fault-based grounds for divorce. This means that a marriage can be dissolved based on certain actions or behaviors by one or both spouses, rather than just a mutual decision to end the marriage. As a family law attorney in Virginia, I often get questions about how fault can affect divorce proceedings. In this post, I will explain the importance of fault in Virginia divorce cases and how it can impact various aspects of the dissolution process.
Grounds for Divorce
In Virginia, there are two types of grounds for divorce: fault and no-fault. A no-fault divorce can be granted if the spouses have been living separately for at least one year, or six months if they have a separation agreement in place. A fault-based divorce, on the other hand, can be granted if one spouse can prove that the other committed adultery, abandonment, cruelty, or a felony conviction resulting in at least one year of imprisonment. If the fault ground is proven, the innocent spouse may be entitled to a greater share of marital property or spousal support.
Adultery is the most common basis for a fault divorce in Virginia. It occurs when a married person engages in sexual intercourse with someone other than their spouse. In Virginia, you must prove that adultery has taken place, which can be challenging, and it can make the divorce process more complex and prolonged.
Abandonment is another ground for divorce in Virginia, and it applies when one spouse leaves the marital home without justification, and the spouse left behind has not given consent. To seek a fault divorce based on desertion, it must have lasted for at least one year.
Cruelty is also a fault ground for divorce. It involves mental or physical abuse by one spouse towards the other. In Virginia, the burden of proof to prove cruelty is high, and it can be challenging to demonstrate that your spouse has acted cruelly towards you.
Conviction of a felony is another ground for divorce in Virginia. It occurs when one spouse is sentenced to a lengthy prison term as a result of a felony conviction. However, fault-based divorces on this ground are rare because it is challenging to prove that a spouse’s criminal behavior has led to the breakdown of the marriage.
One of the ways that fault can impact divorce proceedings in Virginia is through property division. When fault is proven, the court may take that behavior into account when dividing marital property. For example, if one spouse was found to have wasted marital assets on an extramarital affair, the court may award a greater share of the property to the innocent spouse.
Fault can also affect spousal support, or alimony, in Virginia. If the court finds that one spouse is responsible for the breakdown of the marriage due to their fault, they may order that spouse to pay spousal support to the innocent spouse. However, fault is not always a determining factor in alimony awards and will be based on several other factors, such as the financial needs of each party, the duration of the marriage, and the earning capacity of each spouse.
While fault is not directly a factor in child custody determinations in Virginia, it can indirectly impact the outcome of a custody dispute. For example, if one spouse has been abusive or neglectful towards the children, that behavior could be considered in determining what is in the best interests of the children, which is the primary factor in custody cases.
Mediation and Settlement
In many divorce cases, mediation is used as a way to reach a settlement outside of court. When fault is a factor, it can make it more difficult to come to a settlement agreement. Emotions can run high, and it may be harder for the guilty party to negotiate a fair settlement. However, having a skilled family law attorney on your side can help you navigate these difficult negotiations and reach a resolution that is fair and equitable.
As you can see, fault can play a significant role in divorce proceedings in Virginia. If you are considering a divorce and believe that your spouse has committed a fault, it is important to speak with an experienced family law attorney to understand your rights and options. While fault can be a contentious issue, it is just one factor in the overall divorce process, and it is up to the court to weigh all the evidence and make a decision that is in the best interests of the parties involved. By working with a knowledgeable family law attorney, you can navigate the complexities of a Virginia divorce with confidence and come out on the other side with a brighter future ahead.
Virginia Beach Divorce Attorney
At Hardt Law, we understand the emotional and legal complexities that come with divorce, particularly when it involves matters of family, property, and finances. With a commitment to personalized, client-focused representation, we strive to guide you through the process with empathy and efficiency. Contact us today by calling 757-962-5588.