Though I’ve only ever practiced family law in Virginia, I’m pretty sure that everywhere – Virginia included – requires grounds in order to finalize a divorce.
In Virginia, those grounds can be either fault based or no fault based. Whether you choose to file on fault or no fault depends, of course, on the facts; you can’t file on grounds that don’t exist, or for which there is no actual basis in fact. You can, though, pick and choose whether to file on specific grounds, depending on what your goals are and what strategies you’ve identified that will help you achieve them.
Making a decision about whether to file on fault, as opposed to no fault, or vice versa is an important decision. In order to make a solid, informed decision designed to provide the maximum amount of benefit to your case, it’s important to understand the grounds of divorce available to you.
Fault based grounds for divorce
In Virginia, there are a number of fault based grounds for divorce: adultery, sodomy, buggery, cruelty, apprehension of bodily hurt, desertion, abandonment, and felony conviction.
As a first step, it’s a good idea to analyze each, and see whether the facts in your case would allow you to file using these grounds at all.
We group the sexual based offenses together, though they each refer to different acts. Adultery – which I am using right now loosely to define any of the three categories – is when a person has sex with someone who is not his or her spouse. “Sex” (and, sorry, I do apologize in advance for being graphic here) involves any kind of intercourse – oral, anal, or vaginal, and also includes (again, so, so sorry for going here) bestiality.
For cases where domestic violence is an issue, we use cruelty and apprehension of bodily hurt. Technically, in order to PROVE your grounds exist for the purposes of obtaining a divorce (more on this in a bit), you’d really probably need proof of physical acts of violence, but, for a filing, it may be sufficient to allege other kinds of abuse, including verbal abuse.
Desertion and abandonment go together, too, and we use them to describe two situations: one, where one party has left the marriage (or, specifically, the marital residence), and, two, where one spouse has withdrawn the financial support from the other, leaving them unable to cover expenses related to their shared lives or children.
In either case, these grounds are often considered fairly weak, and it’s always a question of what your goals are when it comes to a decision to use fault based grounds.
This one’s an easy one, though not one I see applied all that often. In a case where either of you has been convicted of a felony for which you could serve a year or more in prison, that’s also grounds for divorce.
Conversely, no fault divorce is based off of grounds that have to do with having been separated for a period of time.
In Virginia, to get a no fault divorce, you have to be separated for one year.
The only exception to that is that if you (1) have a signed separation agreement, and (2) do not have minor children, you can get an uncontested divorce after just 6 months of separation.
Do I have to have grounds to file?
Yes. You can’t file at all without grounds. That doesn’t mean you have to have fault grounds, though. You can go the no fault route instead.
The only difference is that you can file right away for fault based grounds – because your grounds must exist at the time that you file – whereas you’ll have to wait until your one year (or six months, if you meet the two criteria) is up before you can file.
Do I have to be able to prove my grounds when I file?
No. In order to file, you must have a reasonable belief that your grounds exist. So, you can just allege a few facts (especially where a fault based divorce is concerned) to establish that reasonable belief. You won’t have to prove it until your case goes to trial – but you will need to be prepared to prove it to the judge’s satisfaction at that point.
Different grounds have different burdens of proof, and require more or less work. Adultery is the hardest, so you’ll want to be prepared for this ahead of time. Remember, too, that just because you want to prove your grounds does not mean that you should do something crazy or unnecessarily expensive (like, for example, hiring a private investigator) without sitting down one on one with an attorney and having a real discussion about strategy and objectives.
Is there a cost differential? What difference does it make?
Of course! It’s more expensive to have a fault based divorce, because you’ll need to meet the burden of proof associated with your grounds.
There is no such thing as agreeing to get a divorce on adultery, and entering into an agreement to that effect. If you allege adultery – or any other fault based grounds – you will have to go to court and prove TO THE JUDGE that your grounds exist. This often involves corroborating witnesses, and can get very expensive.
You can get a divorce on no fault grounds without litigation, and it’s often the cheaper route. It’s a good idea, though, to talk to your attorney in advance about your financial situation, and discuss possible attorney’s fees. How much will your case cost? Almost certainly, it will cost more if you go to court than if you’re able to reach an agreement.
The main advantage to filing on fault is that you can file quickly, and get into court for a pendente lite hearing.
What if I don’t have grounds?
You have to. You can’t file until you do. If you don’t have any of the fault based grounds, then you can’t file today – you’ll have to wait until you’ve been separated for a year, and then you can move forward on no fault. Either way, though, you’ll need grounds, though that doesn’t mean that you need to have any fault based grounds.
When it comes to fault, I think the question I’d apply is, “Is the juice worth the squeeze?” Because of the cost differential, which we discussed earlier, there are definitely barriers that make filing a fault based divorce more difficult and expensive.
For more information or to schedule a consultation with an attorney, give our office a call at 757-425-5200.