You must have a ground for divorce to file for a divorce in Virginia. Virginia law offers both “no-fault” and “fault” grounds for divorce.
You can file for and obtain a “no-fault” divorce if you have been separated from your spouse for more then one year. However, if you have a signed Property Settlement or Separation Agreement with your spouse and there are no minor children from the marriage, you can file and seek a divorce based on six months of separation.
Alternatively, you can file for and seek a divorce based on “fault” grounds. In Virginia the “fault” grounds include adultery, cruelty, desertion or abandonment, and incarceration for felony of more than one year. See the General Guide to Virginia Divorce Law for a more detailed explanation of each ground for divorce.
There are several reasons as to why you may want to consider filing for a divorce based on “fault” grounds.
First, filing for divorce on a fault ground may have an impact on the financial aspects of the divorce. For instance, court's finding of adultery against the spouse seeking spousal support is an absolute bar to spousal support (although there is a “manifest injustice” exception). Further, under Virginia spousal support statute, § 20-107.1, courts are required to consider the “circumstances and factors which contributed to the dissolution of the marriage,” including fault. Similarly, § 20-107.3, Virginia's equitable distribution statute, directs the courts to consider the “circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce.”
Second, having a fault ground for the divorce has an impact on the timing of when the divorce can be filed. Unlike filing for divorce based on no-fault grounds, filing for divorce based on fault grounds does not require that the spouses be separated for any timeframe. However, in case of cruelty and desertion/abandonment, the divorce will not be granted until after a period of one year.
Third, depending on the facts of the case, filing for divorce based on fault may give the filing spouse somewhat of an upper hand during assets and debt division and spousal support negotiations.
It is important to consult with an experienced family law attorney to discuss any further implications to a fault-based divorce in your particular case. Contact us to schedule a consultation today.