Pros and Cons of Filing for a Fault Divorce in Virginia
In the state of Virginia, you have the ability to file for a divorce based on fault-based grounds, which include causes like domestic violence (cruelty), desertion, adultery, and/or a felony conviction that results in incarceration in excess of one year. Virginia also allows parties to file for a “no-fault” divorce, which is actually not as easy as you might expect. Couples are required to live apart for a specified amount of time (12 months if there are children involved) prior to filing for divorce so it’s not a quick legal matter to resolve like other states that truly allow “no-fault” divorces.
Given the lengthy process involved with “no-fault” divorces, it’s important to understand the pros and cons of filing for divorce based on grounds in Virginia.
No Waiting Period
Unlike “no-fault” divorces that require that couples live separately for over a year prior to filing, filing for a fault-based divorce doesn’t require a lengthy waiting period. This is important for couples where one party needs temporary support during the divorce process. On the flip side, it’s important to understand that although you can file sooner, in most cases your divorce will not be finalized any sooner. It’s important to weigh the cost differences as fault-based divorces typically cost a lot more.
Can Affect Spousal Support and Property Division
In Virginia, adultery can bar you from the right to receive spousal support. There are some exceptions to this rule, but in general, the finding of adultery will definitely impact the rights of the at-fault party. Also, a divorce in Virginia based on at-fault grounds can affect the property settlement too. Virginia is an equitable distribution state, which means the courts have the right to consider fault when deciding the division of property. This is obviously a positive aspect for the party who was wronged, but it can end up costing the other party significantly.
Must Show Proof
One downside to filing an at-fault divorce in Virginia is the requirement to actually prove the wrongdoing. Rules of evidence put the burden on the filing party and that can be expensive and create even more tension between the divorcing couple. If there was not a lot of tension prior to the divorce filing, an at-fault divorce is sure to bring some. And, if the other party is found to be innocent, you will be out a lot of money for nothing.
Defenses May Apply
Proving fault in a divorce can be challenging, and there are a number of defenses that can change the outcome of your case. Did you resume marital relations after finding out about the misconduct? What if the spouse who was initially cheated on then had an affair as well? These are just some of the issues that can be used as defenses in an at-fault divorce case.
Retaining a Virginia Divorce Attorney
Divorce in Virginia can be complex, no matter whether it’s based on fault or not. It’s important to have a skilled Virginia divorce attorney to guide you through this challenging time and ensure your rights and assets are thoroughly protected. The attorneys at Whitbeck Cisneros McElroy PC have years of experience handling all types of family law matters. Contact our office at 703-997-4982 to schedule a confidential consultation.