Am I likely to get a divorce on fault, or should I negotiate an agreement?

Posted on Dec 30, 2022 by Katie Carter


A woman asked me this question the other day – am I likely to get a divorce on fault, or should I just negotiate an agreement – and I thought it was a good one. It’s one I’ve answered before, but never in those exact words, and I do think that its worth looking at the question again, in case your case has you wondering the exact same thing.

In general, it’s clear that the choices you make at the beginning of your case are going to impact how long your divorce takes, how much it costs, and what kinds of results you’ll be able to achieve. Not to put too fine a point on it, but that means that decisions you make now are among the most important decisions you’ll make in your entire case.

So, I propose that you start at the end. What are your goals? What do you want this to look like? What kinds of results do you hope to achieve? Write them down. Don’t be afraid to cross things out or add things in or even to bring them into your therapist’s office to discuss.
I think, though, for most people, it boils down to a couple of key points:

1. Get what I need financially to survive.
2. Take care of my children; allow me the space to be the kind of mother I want to be.
3. Spend as little as possible on attorney’s fees.
4. Put me and my children in a place to thrive post-divorce.

Am I right? It’s possible that you could have a few revisions or additions to this list, but I think those are the key points. And I think it’s helpful, then, to work backwards and figure out what the best course of action is for you.

Spoiler: Though there are commonalities in almost every case, the route to get to where you want to be might not be the same as the next person’s. The answer in one case might be a litigated divorce; the answer in another might be negotiating a separation agreement. That’s okay.

Fault Based Virginia Divorces

If you file a divorce based on fault, you’re headed towards a trial. There’s no way to get a divorce using fault based grounds without a trial, because you have to prove to a certain statutory standard that those grounds exist.

For adultery, sodomy, and buggery, that standard is ‘clear and convincing’ evidence, which is just below the ‘beyond a reasonable doubt’ standard used in criminal cases. For the rest of the fault based grounds – cruelty, apprehension of bodily hurt, desertion, abandonment, and felony conviction – it’s a ‘preponderance of the evidence’, which means that 50.01% probability would be sufficient.

So, in other words, at your trial, you’ll have to litigate BOTH your grounds, and how you want your assets and liabilities divided. Fault based divorces are generally among the most expensive and time consuming divorces out there, so that’s just something to be aware of.
There’s no such thing as a separation agreement where you admit or agree to use fault based grounds.

There’s no other way to get a fault based divorce than to litigate. A no fault divorce can be either contested (meaning that it goes to trial, but you wouldn’t have to formally litigate your grounds, since it’s based on your period of separation), or uncontested, meaning that you’ve signed a separation agreement. There’s no such thing as an agreement where you agree to use or admit to fault based grounds, and then get a divorce using them. You will have to go to court, and have to meet the required level of proof.

But, at the same time, even most cases filed on fault will settle before the trial.

A full divorce trial is unusual. Getting a divorce on fault based grounds is unusual. In most cases, the parties settle at some point before trial.
Why? Well, for a number of reasons. For one thing, litigating is expensive (and for what?). For another, when you go to trial, you leave the ultimate outcome in the hands of a judge. It’s really, really scary to imagine some of the most intimate details of your life coming out in open court, let alone letting a judge pass judgment and divide all the assets and liabilities you spent most of your adulthood accumulating. When you negotiate, you have a lot more control over how your assets and liabilities will be divided.

Why might I file on fault, if things will probably settle anyway?

So why the heck would you even bother, right? Why not just start with negotiating a separation agreement? While you certainly could – and many people do – there may be a reason to file on fault first, even if you know (or hope!) you’ll likely settle.

1. You don’t know the scope of the assets and liabilities.
2. He won’t pay you child or spousal support, and you have no means of funding the divorce at all.
3. He refuses to sign an agreement.

Even though it’s probably pretty unlikely that you’ll go all the way to trial, if one of these things is an issue, you might want to start out with filing, because you can have a pendente lite hearing, you can conduct discovery, and you can show him what litigation looks and feels like (which will likely make him more amenable to an agreement).

Should I just start with a separation agreement?

A lot of people start with a separation agreement! Many never have to go any further, because they’re able to negotiate a result.

If funds are limited, or if he’s abusive, I wouldn’t waste too much time negotiating if he just keeps moving the finishing line – it may be that he’s trying to outspend you, and leave you without the money to pursue anything else.

It may be that you want to attempt a draft of an agreement and, if he doesn’t agree, go ahead and file. Oftentimes, dealing with the courts – and attorneys – will cause formerly unreasonable parties to start to work together towards an agreement.

It’s totally up to you, but there’s no ‘one size fits all’ in divorce. Talk it over with your attorney, in light of your goals and priorities, and come up with a plan that meets your needs.

For more information, to request a copy of our divorce book, or to attend a divorce seminar, give our office a call at 757-425-5200 or visit our website at