Understanding Fault and Grounds for Divorce in Virginia
In the old days, divorces were only granted when a spouse demonstrated some form of misconduct. In 1970, California introduced the no-fault divorce, and since then almost every other state has followed suit. In Virginia, being assigned fault in a divorce could impact child custody, spousal support, and distribution of assets.
There are only a few reasons that are considered grounds for a fault divorce in Virginia. Some of these include:
- Adultery. Even if your spouse admits to having an affair, establishing an adultery claim can be tricky. You may need to hire a detective, call witnesses, and/or name names to prove adultery in court. The evidence required is strict and specific, and certain acts of infidelity are not considered adultery under the law. Also, if you knew about the adultery but continued to live and be intimate with your spouse, the Court may decide you have shown “condonation,” or forgiven the affair.
- A felony conviction with jail time. If your spouse was convicted of a crime and was sentenced to at least three years in prison, you are entitled to a divorce. Your spouse must have served at least 12 months of his sentence before you can file for divorce.
- Physical cruelty. To use this ground for divorce, your spouse must be physically abusive, to the extent that your marital home has become unsafe for you. It is not enough if your spouse is solely mentally abusive; there must be actual physical harm. Although you can file for a limited divorce immediately after the physical act of cruelty, state law requires you live apart for 12 months before you can be granted a full divorce.
- Abandonment or Desertion. Abandonment must be intention, and it must be continuous for during the 12 month separation period. In some cases, you may be able to prove that your spouse abandoned the marriage even if he did not leave the home. This is known as “constructive desertion.”
Like almost every other state, Virginia also allows a no-fault divorce (also called a voluntary separation). To obtain a no-fault divorce, one party must have the intent to no longer be married. A divorcing couple must also live “separately and apart” for at least a year before they are eligible to file for a no-fault divorce. If the spouses have no children and enter into a property settlement or separation agreement, the waiting period may be reduced to six months.
Reach Out to Our Leesburg Virginia Divorce Attorneys
If you are considering divorce, it is important to speak with a family law attorney right away. The Loudoun County divorce lawyers at Whitbeck Cisneros McElroy PC are dedicated to protecting your rights and interests. Contact our office in Leesburg to schedule a consultation.