Cruelty in Virginia Divorce

Posted on Jul 14, 2017 by Katie Carter

It’s not one that we see all the time (in fact, we prefer not to have cruelty come up!), but, in Virginia, cruelty is grounds for divorce.  Cruelty can mean a lot of different things to a lot of people; in fact, I think most of us can agree that to verbally or emotionally abuse your spouse is pretty cruel.  Rude comments and hateful or spiteful behavior is damaging and draining, and definitely not the kind of atmosphere you want to spend the rest of your life living in. You said your wedding vows, and you meant them.  And you’re probably feeling more than a little bad about possibly breaking them.  But just because you said a couple of vows is no reason to spend the rest of your life in an unproductive, unhappy, unfulfilling—and, worse, abusive—relationship.

That being said, though, not every divorce where cruel behavior is present qualifies for a divorce on the grounds of cruelty.  If you plead cruelty, the court will be looking for specific behaviors in order to grant your divorce. That being said, though, getting a divorce granted on certain grounds is different than filing for divorce on specific grounds.  Plenty of people file for divorce using cruelty as their grounds, and allege physical, emotional, or sexual abuse of some kind.  That doesn’t necessarily mean that the court would grant the divorce on those grounds; in most cases, in fact, it’s really a moot point.

Most people in Virginia finalize divorces on no fault grounds, even when they have fault.  Most of the time, even if parties file for divorce on fault, a divorce is finalized on no fault grounds instead.  In Virginia, no fault grounds are based on being separated for the required period.  In Virginia, to get a divorce you and your husband have to be separated for one year, unless (1) you have a signed agreement, and (2) you don’t have any minor children, in which case you can divorce after just six months.

Why?  Well, a number of reasons.  For one thing, fault based divorces are more difficult to prove.  It’s not enough to have the other party’s admission; you have to offer evidence, introduce witnesses, and otherwise convince the judge that your grounds exist.

In a fault based divorce, you’re essentially litigating two things: (1) your grounds, and (2) the actual distribution of marital assets and debts, plus custody and support.  It’s also time consuming and, as you can probably already imagine, prohibitively expensive. In the end, most people opt for a no fault divorce, even where grounds exist for a fault based divorce, as a simple matter of expedience.  In the interests of finishing the divorce quickly, retaining as much of the marital assets for division between the parties as possible (as opposed to paying exorbitant attorney’s fees), and moving on with their lives, most people ultimately end of negotiating a divorce and signing a separation agreement. When filing on no fault isn’t an option It’s not always an option to file on no fault.

There are several reasons why I see women, even women who’d prefer to negotiate an agreement (despite having fault based grounds to file on), choose to file on fault.

1. Their husbands refuse to sign an agreement.

If your husband refuses to sign anything, there’s not much we can do other than file for divorce.  It may not be your first choice, but it’s pretty much your only choice.  An agreement is voluntary; we can’t force him to finalize on no fault grounds.  If he won’t sign, he won’t sign, and, sometimes, any further negotiation is just a waste of your time and money.  Filing for divorce means you can force things to move forward, whether or not he’s willing to play ball.  Maybe he’ll come to his senses and negotiate an agreement with you later, but his unwillingness to negotiate is a reason to go ahead and file if you’re serious about moving forward sooner rather than later.

2. Their husbands remove any and all financial support.

If you separated and suddenly your husband has removed all financial support, you may be in trouble.  If you don’t have the means to pay the bills or take care of the kids or do any of the things you used to be able to do, you may have to file for divorce.

One of the main advantages of filing for divorce is that you can have a pendente lite hearing, and request temporary child and spousal support to help out in the mean time.  If he won’t pay you any support, it’s really your only option.

3. They don’t know what the assets are.

Don’t know what’s there to divide?  Don’t know what bank accounts, credit cards, investments, or retirement your husband has?  You may need to file for divorce in order to conduct discovery to figure out what the marital assets even are.

What would I need to prove cruelty?

In the cases I’ve seen where divorces were granted on the grounds of cruelty, there has been physical abuse.   Like adultery, and all of the other fault based divorces, the evidence has to be corroborated by a third party—in many of these cases, a police officer, or someone who can testify to the nature and origin of the injury you’ve suffered. In many cruelty cases, evidence offered included testimony of police officers or friends, pictures or hospital records documenting the physical damage to one party, and records of charges filed or police reports created against the offending party.

It’s not all that difficult, really, provided that the cruelty you experienced rises to the level of what the courts have required in order to grant a divorce using cruelty as your grounds. If you’re planning a divorce and you’re thinking that you’ll need to use cruelty as your grounds, you’ll definitely want a Virginia attorney familiar with domestic violence cases.  These cases are difficult (and, obviously, not a lot of fun), but you’ll want someone involved who has experienced with these types of cases.  For more information, or to go ahead and schedule an appointment, give our office a call at (757) 425-5200.