Fault Based Grounds for Divorce

Posted on Dec 28, 2015 by Katie Carter

Most people, at some point or other, really want to explore all of their options when it comes to divorce. For most people, too, that starts with carefully considering fault based grounds.
They’re definitely appealing. For a lot of people, selecting from among the fault based grounds of divorce feels almost compulsory, if those grounds exist. For others, being able to use fault based grounds provides a level of justification. It’s almost a way of saying, “See? The law recognizes why I can’t stay!” For still others, there’s a religious compulsion behind the need to seek out fault based grounds for divorce; proving them provides a way to be recognized by the church, mosque, or synagogue in a way that is meaningful and not tainted by the fact of the divorce.
There are lots of reasons to consider fault based grounds first. But, under the circumstances, is that really the best place to start? What are your alternatives? What will, in the long run, yield the best results?
That’s really the key question, isn’t it? It’s not just about the act of getting divorced; it’s about getting divorced in a way that sets you up in the best possible way for success, happiness, and fulfillment after divorce. When you imagine what you want for yourself after the ink dries on your final divorce decree, what do you see? How do you get there? And, to what extent do your choices now affect whether or not you’ll be able to realize those goals?
Like anything, divorce is a matter of strategy. You want to come up with a plan that makes your divorce as successful as possible. How do you measure success in divorce? As far as I’m concerned, the best, most successful divorce is the one that paves the way to allowing the divorcee to become the woman she always wanted to be. At the beginning, I try to keep my mind on the end point. Where do you want to be? What do you want to do? And, ultimately, how are we going to get you there?
Let’s start, as I often do, with a discussion of fault based divorce.

What are the fault based grounds of adultery in Virginia?

In Virginia, the fault based grounds for divorce are adultery, sodomy, buggery, cruelty, desertion, abandonment, apprehension of bodily hurt, and felony conviction. They’re mostly pretty self explanatory, but I’ll go into some detail on each.

The sexual based fault grounds: adultery, sodomy, and buggery

Most of the time, the three sexual based fault grounds are all lumped together, even though they’re technically different.
They all refer to sex-based offenses occurring outside of the marriage. Adultery, by definition, is when a person who is married intentionally has sex with a person who is not his or her spouse. It’s all about sex; we’re not talking about hand holding, kissing, or “I love you.” Adultery usually encompasses vaginal sex.
Sodomy, on the other hand, includes oral and anal sex. Buggery is the rarest of the three (thank goodness), and includes bestiality. (Luckily, I have never had, or heard of, a case that involved buggery.)

Cruelty and Apprehension of Bodily Hurt

These two grounds are the domestic abuse grounds, and they are construed pretty broadly. They can include physical and emotional violence and abuse.

Desertion and Abandonment

Desertion and abandonment are also closely related. We use these grounds in two main situations. First, where one party has left the marriage with no explanation—like, when a husband moves out without explanation or agreement. We also use it in a situation where one spouse is suddenly and inexplicably cut off from the marital money. For example, when a husband suddenly announces he’d like to be separated, and then has his paychecks automatically deposited into another account. If he then refuses to provide financial support for the wife and family, we can use financial abandonment or desertion as our grounds.

Felony conviction

If either you or your husband has been convicted of a felony for which you could serve a year or more in prison, that is also grounds for divorce.

How does using fault based grounds change the divorce process?

Filing for Divorce

In Virginia, you have to have grounds to get divorced, whether they’re fault based or no fault based grounds. You can’t file for divorce at all until you have grounds, so, when it comes to fault based divorce, filing is a little bit easier. Once the adultery, cruelty, desertion, or felony conviction happens, you have grounds and can file using those grounds immediately. This means that you get into the courts right away, and can use the tools provided for you by law to move things along.
When it comes to a no fault divorce, on the other hand, your grounds have to do with your period of separation. In Virginia, you have to be separated for a year before you can file for an uncontested divorce (unless you don’t have any minor children and you have a signed agreement, in which case you can file after six months). Instead of being able to file right away, like in a fault based divorce, in a no fault divorce you have to wait until your period of separation has run.
To file for divorce using fault based grounds, you don’t have to actually prove your grounds exist. You just have to have a reasonable belief. Most of the time, in fault based cases, we file the complaint using as much information as we have at the time so that we can demonstrate that our belief really is reasonable. We won’t have to prove it until trial, so there’s still time to gather information, talk to witnesses, and make sure that we have all of our proof lined up. For example, in a case where adultery is the issue, we would allege, in the complaint, the approximate location and date of the affair and the initials, if we have them, of the paramour. That’s enough to get us in the door of the courthouse.

Immediate Divorce

In Virginia, using adultery as your grounds qualifies you for an immediate divorce. It doesn’t work that way for any of the other fault based grounds; in those types of cases, though you can immediately file for divorce, you can’t actually get divorced until you’ve been separated for the full year.
With adultery, though, you can get divorced immediately. At least, theoretically you can get divorced immediately. In real life, though, very few people actually even try to get divorced immediately, let alone actually get divorced.
Why? Well, to start, adultery is difficult to prove. We’ll talk about that more in a minute, but you have to prove that adultery exists in order to get a divorce using adultery as your grounds. Since you have to have grounds to get divorced, there’s a potential issue. What if you file for divorce and go to court, only to find out that the judge doesn’t believe the proof that you provide is enough to support your adultery allegations? Then, the judge can’t grant your divorce. There aren’t any grounds!
As a practical matter, many attorneys don’t move forward with trials for divorce using adultery grounds until the full year of separation has run. Why? Well, it’s expensive to get to trial. And, if you get all the way there, spending all your client’s money, and then you CAN’T prove adultery, you can’t turn around and ask that your divorce be granted on no fault grounds in the alternative.
What would you have to do? If the judge wasn’t convinced by your evidence, he’d dismiss your case. Your attorney couldn’t then use no fault grounds, so you’d be back to square one. You’d have to start your case all over again.
So, even though it’s technically possible to get an immediate divorce, most attorneys choose not to move forward with adultery cases that way. We tend to wait the full year before we move forward—and, in many cases, we need the year to prepare anyway.

Divorce Trial

In a contested, fault based divorce, you have to go to trial. Because fault based grounds carry potential criminal and civil penalties (and adultery, for example, is still a crime in Virginia), you have to go to court to prove that your grounds exist.
In a no fault divorce, you can agree to a lot of things—like how to divide the assets and liabilities, and how to handle custody and visitation. But you absolutely, positively cannot agree to get a divorce using your fault based grounds. It may sound counterintuitive, since you can agree to so many other things, but evidence and testimony is required in these types of cases. There are certain levels of proof required by different grounds, and you have to satisfy a judge that the appropriate level of proof has been met.
At trial, you’ll have to introduce evidence, question witnesses, and provide testimony to handle two different issues: (1) whether your grounds are valid, and (2) how everything should ultimately be divided. As you can probably tell, these are all fairly complicated issues—which is part of the reason why contested divorces tend to take longer and cost more than uncontested ones.

Proof Required

Different fault based allegations require different levels of proof. Because adultery is a misdemeanor in Virginia (even if it is rarely prosecuted), it requires the highest burden of proof. To prove adultery to the satisfaction of a judge, you’re going to need clear and convincing evidence. That’s a pretty high standard.
Just to provide you some background, there are a number of different levels of proof used in court. You’re probably pretty familiar with the “beyond a reasonable doubt” standard used in criminal cases. That’s a super high burden of proof; it’s actually the highest possible burden of proof. Why? Well, because, in a criminal case, there’s a lot at stake. Specifically, there’s potential jail time. When a person risks losing his or her liberty, the highest standards are applied—to protect the accused. You know the whole “innocent until proven guilty” thing; it’s a core standard of our judicial system.
Family law standards are different. No one risks losing his or her liberty there; there’s not going to be jail time. So, we use lesser standards of proof. Clear and convincing evidence requires less proof than beyond a reasonable doubt, but it’s still fairly high.
To prove adultery, we need a corroborating witness. We need someone, like the girlfriend or a private investigator, to testify in court. We often can’t get the girlfriend (unless, of course, they’ve broken up); a private investigator, on the other hand, can be hired to follow your husband, to see where he goes, to watch the exits, and, basically, to testify that the opportunity to commit adultery has occurred.
For the other fault based grounds, we need proof based on a preponderance of the evidence, which is the lowest burden of proof. Preponderance just means that, if you had a set of scales that were absolutely perfectly evenly balanced, one single feather placed on the other side would tip the scale in favor of that side. In other words, your grounds 50.01% likely, versus 49.99% likely.

What is the difference in cost of a fault based grounds, as opposed to a no fault divorce?

There is a MAJOR difference in cost! It is really difficult, ahead of time, to estimate exactly how much a divorce will cost. Still, it’s very easy to say that an uncontested divorce is far, far cheaper than a contested one.
I’ll give you a ballpark idea, but I want you to keep in mind that’s all this is—a ballpark idea. It’s not a guarantee or even an estimate of costs based on your particular case, which may cost less or more. It really all depends. Still, typically, an uncontested divorce runs in the $2,000-5,000 range.
A contested divorce, on the other hand, runs in the $20,000-40,000 range. Have I seen divorces that cost considerably more? Yes! Fairly regularly, too. (Oh, also, keep in mind: I’m talking about costs per person, not total overall cost.)

Why do contested divorces cost so much more?

There’s a lot more time involved in a contested divorce. There are a number of court hearings (like the pendente lite hearing, for example), which require attorney time and preparation. There’s more evidence, exhibits, and witnesses, which have to be thoroughly examined, organized, synthesized, and prepared for presentation. There are settlement conferences, pre trial briefs, and other documents that need to be prepared.
Judges don’t really like family law cases a lot of times, so they place a lot of roadblocks in the way to encourage settlement and discourage litigation. Lots of courts require judicial settlement conferences and other things to take place before a trial date can even be set. Each of these appearances and documents and things required by the court cost time and money, because the attorney has to prepare—often extensively.

Is it worth it to pursue a fault based divorce? Why would someone choose to move forward with a fault based divorce?

Most of the time, it’s probably safe to say that contested divorces really AREN’T worth it. Why? Well, this isn’t a personal injury case. It isn’t one where you have a lot of money to win. In a divorce, you only have the money you had during the marriage, divided between the two of you. So, automatically, you’ll feel like there’s less money after the divorce than there was beforehand.

But won’t fault based grounds mean I get more?

Honestly, probably not. Though the judge CAN take fault based grounds into account when deciding how everything should be divided, that doesn’t mean that he has to. In fact, most of the time, fault based grounds really don’t make a difference to the judge.
Of all the fault based grounds, it’s probably easy to say that adultery is considered the most serious. Even in cases of adultery, we don’t often see the guilty party receiving a lesser share of the marital assets. Fault based grounds don’t really give you a golden ticket; most of the time, we see people spending exorbitant amounts without an improved return.
Talk to an attorney about your case before you make a decision about how you want to move forward. Your attorney can give you an idea of whether your grounds will really be worth pursuing, or whether you’d be better off trying to negotiate a signed separation agreement.
Keep your goals in mind. Where do you want to be at the end of this? I’m going to take a shot in the dark, but I think you’d like to have as much of the marital money left over as possible, so that you can get yourself the fresh new start you’ve imagined.

Why might someone choose to move forward with a fault based divorce?

Negotiating a signed separation agreement does require some cooperation on the part of both parties. Sometimes, we get a case where the other side absolutely won’t agree, no matter what we do. In that type of case, we have no other choice but to file for divorce.
If your husband won’t cooperate, you may have to file for divorce. But that doesn’t mean that you’ll have to go all the way through with a contested, fault based divorce. In many cases, even though these things start out contested, negotiation is possible later on. If your case starts out with tensions super high on one or both sides, don’t worry. These things often work themselves out over time.
If not, you’ll want a licensed and experienced attorney on your side. Take a deep breath, and cross each bridge as you come to it.
For more information about fault based grounds, or to talk to an attorney about your upcoming case, give our office a call at (757) 425-5200.