Should You File for Divorce Based on Fault in Virginia?
Virginia law allows for divorce based on both fault-based and “no-fault” grounds. The fault-based grounds include desertion (actual or “constructive”), adultery, desertion (actual or “constructive”), and felony conviction and confinement in excess of one year. In deciding which ground to file on, it is wise to start by considering the pros and cons of filing for divorce based on a fault-based ground in Virginia.
Advantages to Filing for Divorce Based on Fault
Unlike a “no-fault” divorce, if you decide to file for divorce based on fault, there is no statutorily mandated waiting period for filing. Many individuals who want to get the ball rolling on their divorce may choose to proceed based on fault (assuming it is applicable in their case). This advantage to a fault-based divorce is especially important in those cases where one spouse needs immediate, temporary child support or spousal support during the pendency of the divorce, which can be obtained through a pendente lite proceeding.
In addition, filing for divorce based on fault is often attractive to a spouse who feels wronged by their partner. Proceeding with a fault-based divorce requires the filing party to provide evidence to the court to support some wrongdoing by their spouse. This oftentimes means that a spouse’s bad behavior is exposed, which may give the wronged spouse a sense of justice.
While fault can be a ground for divorce, it also plays a role in other aspects of the proceeding. For instance, a finding of adultery is an absolute bar to spousal support in Virginia (although there is a “manifest injustice” exception that often swallows the rule). Further, the Virginia spousal support statute, § 20-107.1, directs courts 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, provides that courts may consider fault for purposes of property division. While marital misconduct can be considered in both a fault and no-fault divorce, it is clearly more apparent in a divorce based entirely on fault.
Disadvantages to Filing for Divorce Based on Fault
While there are many advantages to filing for divorce based on fault, there are also important drawbacks to consider before proceeding down such a path. First and foremost, a fault-based divorce requires proof of the wrongdoing, which can frequently be an onerous burden on the filing party. Because of the stringent evidentiary requirements, a fault-based divorce is often more expensive, complex, and can become quite adversarial.
Many people believe that because there is no waiting period required before filing for a fault-based divorce, doing so will speed up the divorce process. However, being able to file sooner does not necessarily mean your divorce will be finalized any sooner, or at least not all that much sooner. It is often not worth the extra headache and additional attorney’s fees involved in a fault-based divorce just to have the divorce finalized a few weeks or months earlier.
Finally, it is important to consider that when filing for a fault-based divorce, a number of defenses could apply in the case. Virginia law provides for the defense of condonation if the parties resumed their marital relationship after one spouse learned of the other’s misconduct. In addition, the defense of recrimination could apply if both spouses are guilty of fault in the marriage. For instance, if both spouses engaged in affairs, and both could prove it, it would be difficult for either to file for divorce based on adultery without causing their own dirty laundry to be aired in the process.
These are just some of the benefits and drawbacks of filing for divorce based on a fault-based ground in Virginia. Be sure to consult with an experienced family law attorney to discuss any further implications to a fault-based divorce in your particular case. Livesay & Myers, P.C. has a team of experienced family lawyers across offices in Fairfax, Leesburg, Manassas and Fredericksburg, representing clients across Northern Virginia. Contact us to schedule a consultation today.