One disservice that I think fault-based divorce does for people who live in states – like Virginia – that allow for fault-based divorce is that it puts them in a frame of mind where proving that someone is to blame for the marriage ending is somehow important.
I’ll be clear, right up front: divorce is not designed, generally, to be punitive. Though there are certain behaviors that qualify a person to use fault-based grounds (or, in the alternative, to have them used against them, if they’ve committed the ‘fault’), we don’t often see the ‘victims’ of this behavior awarded a disproportionate share of the assets because of their victim status.
There are many strategic reasons that you might choose to file on fault – especially if you need to have a pendente lite hearing or conduct formal discovery – but, at the end of your case, it’s probably not going to come down to proving it anyway. Not only is it prohibitively expensive and time-consuming but, in the end, it mostly doesn’t matter.
To the court, the end of a marriage is like dissolving a business partnership. Two people are going their separate ways and all that remains is to divide what was accumulated between them in an “equitable” way. Equitable means something like fair, but it doesn’t exactly come down to fairness in the end. In many cases – if not MOST cases – it comes down to something like 50% of the marital assets being divided between the parties. That’s not to say that some property isn’t separate, meaning that it only belongs to one party and therefore is not divisible in the divorce, but the marital assets (and liabilities, it’s important to point out) are going to be divided.
There are some ways the law punishes bad behavior. If you committed adultery, this is an absolute bar to spousal support, except in cases of manifest injustice. (That is assuming, of course, that spousal support would have been awarded anyway.)
But divorce – family law in general – is civil and not criminal in nature, so we don’t spend a lot of time adjudicating who is right and who is wrong. In fact, in that way, your ‘day in court,’ if you have one, may feel anticlimactic.
Even if he has abused you or cheated on you, this doesn’t mean that the court will recognize this abuse or adjudicate it in any way that is meaningful to you. The marital assets are likely to still be divided (and still somewhere close to 50/50). Virginia is an equitable distribution state – as opposed to a community property state – so it’s theoretically possible that you could receive more than 50%, but … not likely.
Fault based grounds require that you go to court and litigate in front of a judge, meeting the statutorily required burden of proof associated with each set of grounds. It means that the way your divorce is handled, and your assets and liabilities divided, is in the judge’s hands, rather than your own.
A no fault divorce means that you can either litigate, if you can’t reach an agreement, or you can negotiate a separation agreement. In a separation agreement, you and your soon-to-be ex can decide for yourselves how everything will be divided. Sure, it’s not easy to reach an agreement, but it’s better – not to mention more cost effective and more likely to yield good results – than the alternative!
No fault doesn’t mean that no one’s at fault, but fault is mostly beside the point anyway. It’s really not important, and it doesn’t help your case much to focus on the fault-based element of what brought you to the point of needing a divorce. (Not only that, but just because you DON’T have fault-based grounds for divorce doesn’t mean that your divorce isn’t legit!)
You can end your marriage for any reason; fault or no fault doesn’t really matter in the sense that one is not more legitimate than another. Mostly, it refers to the divorce process that you’ve chosen – whether you’ll fight it all out in court (and end up with less to divide), or whether you’ll decide for yourselves how your assets, liabilities, and responsibilities from the marriage will be divided and shared between you.
He could still have committed adultery – or not. No fault really has very little to do with blame or apportioning blame. At the end of the day, it comes down to having satisfied a period of separation. In Virginia, you must be separated for one year, or six months if (1) you don’t have any minor children, and (2) you’ve signed a separation agreement. In order to use no fault grounds, you must have satisfied the statutory requirement for legal separation.
That’s it!
For more information or to request a copy of one of our divorce or custody books for women, give our office a call at 757-425-5200 or visit our website at hoflaw.com.