Fault grounds in Virginia

Posted on Feb 2, 2015 by Katie Carter

Before you file for divorce in Virginia, you have a lot of decisions to make.  Some of those decisions are made for you.  If, for example, your husband refuses to sign any separation agreement ever, or you separated and now he refuses to pay any support at all, he can force your hand for you.  In most cases, women want to look at any possible alternative other than filing for a fault based divorce.  I admit, I encourage them to consider all the alternatives, too—but sometimes it’s just not always a possibility.

It’s important to hire an attorney who is comfortable with both scenarios: settlement and litigation.  No matter what road you end up on, you should be confident that the attorney you’ve hired is confident that she can manage your case in a way that leaves you with the ability to get the best new start possible.

If you’re facing a litigated divorce, don’t panic!

Obviously, you’re thinking that your divorce may be litigated.  Otherwise, you wouldn’t be reading this article.  If you’re worried about litigation and everything it entails, take a deep breath.  I’m here to help provide you information about the way fault-based divorces in Virginia work, but I’m also here to give you a healthy dose of reality.

Here it is: in many cases, even when they start out hotly contested, simmer down over time.  An actual fault based divorce is a pretty rare thing for a couple of reasons.  For one thing, because you have to actually prove to the court that your fault based grounds exist, it’s time consuming and expensive to do.  For another, most courts are set up in such a way that there are a number of different procedural steps you have to complete before you get to a trial.  These steps are designed to help facilitate settlement, so that a trial doesn’t end up happening.  There’s a third reason, too: in many cases, the parties decide, eventually, for a million different reasons, that it’s just not worth the fight.

If you’re facing a fault based divorce today and you’re scared, that’s understandable.  But you should still know that very few divorces move all the way through to an actual trial; these days, more and more couples settle—eventually.  So, don’t panic, and don’t borrow trouble.  Try to stay calm, cool, and collected.  Talk to an attorney about your rights, your options, and the road she thinks you should take.  Keep your goals and priorities in mind, but don’t forget that your husband plays a role in all of this, too.  Think before you act, don’t post anything potentially harmful on Facebook (really, trust me, just don’t do it), and try to keep your future in mind in every interaction that you and your husband have.  In most cases, if one party stays reasonable, the other party (even if he is raging at the beginning of the process) will eventually calm down, too.

Still, for whatever reason, you may start out with a fault based divorce.  Today, we’re going to talk about fault based divorce—specifically, what grounds you can use and how you properly allege them.

What types of fault based divorce can I use?

There are only a couple of fault based grounds.  In order to file for divorce on fault, you’ll have to use one of them.  The fault based grounds for divorce in Virginia are adultery, sodomy, buggery, cruelty, apprehension of bodily hurt, desertion, abandonment, and felony conviction.

Adultery, Sodomy, Buggery

Adultery, sodomy, and buggery are the sex based offenses.  We can allege one, two, or all three, depending on the circumstances, but it probably makes the most sense to think of them all as “adultery,” which is how I’ll discuss them.

dultery is when a married person has sex with a person who is not his or her spouse.  Keep in mind that we’re talking about sex here—we’re not talking about going out on dates, kissing, holding hands, or exchanging cards for Valentine’s Day.  Usually, when we’re talking about adultery, we’re talking about regular, run of the mill, vaginal or oral sex.  Sodomy, on the other hand, encompasses oral and anal sex, while buggery (which, admittedly, is a pretty antiquated word that is almost never used anymore, except when I talk about fault based grounds for divorce) includes anal sex and bestiality (please, don’t worry, I really have never had a case where bestiality was an issue).  We lump all these three together, because they include every possible type of intercourse—vaginal, oral, anal, and with animals.  Taken together, they all make up “adultery” generally, which just means consensual sex outside of marriage.

Adultery qualifies you for an immediate divorce.  In most cases, though, the divorce is not immediate.  Why?  Well, to get a divorce based on any fault based ground, you have to prove that the grounds exist.  To prove adultery, you have to provide “clear and convincing evidence” to the judge.  If the judge doesn’t find that your evidence is “clear and convincing,” you can’t get a divorce using adultery as your grounds.  So, to get divorced, you’d have to use other grounds—other fault based grounds, if you can prove them, or no fault grounds, which is more likely.  To get a divorce using no fault grounds, you have to live separate and apart for a year (or six months, if you don’t have minor children AND you have a signed separation agreement in place).  For practical reasons, most attorneys wait to have that final hearing until the one year (or six months, if applicable) has passed, so that, if the judge is unimpressed by the evidence, it’s possible to switch over to a no fault divorce.  You wouldn’t get divorced using your fault grounds, but you’d still be divorced.  Otherwise, you’d have to go through the entire process all over again—which, as you can imagine, would be both time consuming and prohibitively expensive.

Like I said before, you have to prove adultery using clear and convincing evidence.  That doesn’t mean that, in order to FILE on adultery you have to prove clear and convincing evidence (to file, you just need to have a reasonable belief that the adultery occurred), but it does mean that, at some point, you’ll be required to go to court and provide some evidence to support your claim.  Your evidence also has to be corroborated (supported) by a third party.  In a lot of cases, a private investigator is the corroborating witness; in other cases, the angry ex girlfriend or someone else can provide the necessary testimony.

Cruelty, Apprehension of Bodily Hurt

Cruelty and apprehension of bodily hurt are the “domestic violence” grounds, and they can be applied to cover a multitude of behaviors.  You can use these grounds to cover most forms of physical, emotional, and financial abuse.  There’s a lot of flexibility in how these terms are applied, so chances are if you’re wondering whether your husband’s behavior rises to the level we’re looking for here, it does.

Of course, you’ll still have to prove it.  The burden of proof here isn’t as high as in adultery cases (because adultery is a misdemeanor crime in Virginia), but you’ll still have to prove that your grounds exist.  You’ll have to prove it based on a “preponderance” of the evidence (which basically just means that it’s more likely than not; like, if someone placed a feather on a scale that was perfectly balanced at 50/50, that would be enough to prove a preponderance of the evidence).

Desertion and Abandonment

If you move out without an agreement, technically you could be found guilty of deserting the marriage.  Abandonment is similar.  Desertion can be physical, and it can also be financial—if one party removes the financial support that they previously provided without an agreement, it can be considered abandonment.  Again, like with cruelty and apprehension of bodily hurt, there are a lot of different alternatives that the court would accept.

Again, you’ll have to prove it, and, again, the standard of proof required is a “preponderance” of the evidence.

Felony Conviction

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

How long does it take?

 Like I said before, adultery can qualify you to receive an immediate divorce (even though, in most cases, an attorney will wait the full year before trying to go to trial).  With all the other fault based grounds, even though you can file for divorce immediately, you have to wait until the end of a year (or six months, if you don’t have minor children and you have a signed agreement) before you can move forward with your divorce.

So, long story short, it generally takes about a year to get divorced, no matter what your grounds.  In some cases, it can take much longer, of course, but it all depends on the situation.

Why file on fault?

People file on fault for all sorts of reasons.  Here are a couple of the ones I see most frequently.

1.  He stopped paying support.

In cases where a higher earning spouse has stopped providing any money to the family, sometimes the lesser earning spouse has no choice but to file for divorce.

This happens all the time when parties separate.  Usually, after the parties separate, the higher earning spouse takes the money that was formerly deposited into a joint account, and moves it into a separate account—and doesn’t pay any support at all to the lesser earning parent.  Whether they’re still living in the same house or not, it’s incredibly difficult for the lesser earning spouse to continue to pay for everything and manage the household the same way as before.  Until an order is entered ordering support to be paid, the lesser earning spouse just has to make do.  Frankly, in a lot of cases, that’s just not an option.  The solution?  File for divorce, and schedule a pendente lite hearing.

“Pendente lite” is Latin for “while the litigation is pending.”  It’s a hearing, usually the first hearing, where temporary child and spousal support are determined.  In most cases, it’s the fastest way to get support in place.

2.  He won’t sign an agreement.

An uncontested, no fault agreement isn’t possible if one party just won’t cooperate.  If he won’t sign an agreement, your divorce can’t be labeled as uncontested, so you’ll have to litigate it.

A separation agreement is something that is entered into voluntarily; there’s nothing you can do to force him to sign an agreement.  If you really want to get divorced, the only option you’ll have is to officially file for that contested divorce.

3.  It could result in a disproportionate award of the assets.

The law allows a judge to take the positive and negative monetary and nonmonetary contributions of the parties into account when deciding how to divide the property.

Fault that led to the breakdown of the marriage is considered to be a negative nonmonetary contribution.  The judge could (theoretically, at least) consider that negative nonmonetary contribution as a reason to award the wife (the innocent party) a greater share of the assets.

Does this happen?  Yes, but not often.  Using fault based grounds rarely give innocent spouses the relief that they feel they deserve, and they certainly don’t provide any “golden ticket.”  To find out whether it might be worthwhile to pursue a fault based divorce in order to receive a greater share of the assets is something that really requires an individual consultation.  To find out more about your specific situation, give our office a call at (757) 699-5796.

4.  Religion doesn’t recognize divorce for another reason.

Different religions face the issue of divorce differently.  Some religions tolerate it, but only under specific circumstances (like where there is adultery).  Still others require that their members take specific steps in order to have their divorces sanctioned by the church.

Depending on your religious background, you may feel that you have to behave in a certain way when it comes to your divorce.

How to file on fault

As you probably already know, you have to have grounds to file for divorce.  In fact, you have to have grounds at the moment you file for divorce—not later.  That’s why, in an uncontested divorce, you can’t file until you’ve already been separated for a full year.  It’s the separation that makes up the grounds for the no fault divorce—so you have to live separately, without interruption and without cohabitation, for one year (or six months if you don’t have minor children and have a separation agreement).

Only adultery qualifies you for an immediate divorce, but all the fault based grounds entitle you to at least file for divorce immediately.

When you file for divorce, you submit a document called a complaint to your local circuit court.  The complaint is really important, because it officially opens up your divorce as far as the court is concerned.  It also sets forth your grounds for divorce, the supporting evidence you have, and specifically requests the relief that you want.

You don’t need to prove that your grounds exist to file on them; you just have to have a reasonable belief that the grounds exist.  To show your reasonable belief, you’ll include whatever evidence you have at the beginning to support your claim.  If you’re alleging adultery, for example, you’ll probably want to allege as many details as you have—but, specifically, anything about when, where, and with whom the affair took place would be helpful.

What if he files first?

If your husband files first, don’t worry.  It doesn’t mean anything, and it won’t result in any prejudice against you.  Technically, the person who files first is labeled as the “plaintiff,” and the person who files second is the “defendant,” but this isn’t a criminal case.  The labels don’t mean anything more than “this is the person who filed first,” and “this is the person who filed second.”

If you filed first, you would have your complaint served on your husband.  In Virginia, you have to serve a complaint for divorce on the other party, so your husband would be notified of the pending suit by being personally served (if the process server handed the complaint to him) or if it were posted to the front door of the place where he is currently living.

It works the same if you husband files first, but then you would be the one getting served.  Again, it’s not a big deal; it doesn’t mean anything at all, and there is no prejudice against you.  It does, however, mean that it’s time to get into high gear.

How long do I have to respond to the complaint?

After you’ve been served with a complaint for divorce, you have 21 days to respond.  The clock starts ticking the moment you’ve been served, and you want to make sure you get your response in to the court, or it’s possible that your case could move forward without further notice to you.  The 21 day time period is really important!

There’s only a specific amount of time to respond if what you’ve received is a complaint.  Make sure that, at the top of the document you were served with, it says “Complaint” or “Bill of Complaint,” or “Complaint for Divorce,” so that you’re sure it’s what you’re dealing with.

What else could it be?  Well, sometimes, rather than litigating a divorce, people try to negotiate an agreement, so they can move forward with an uncontested, no fault divorce instead.  If that’s where your husband’s head is, he may try to send you a separation agreement first.  How can you tell the difference?  A separation agreement won’t be served on you, so no process server will hand it to you or post it to your door.  It’ll probably come in an envelope in the regular mail.  On the top, it’ll say something like, “Separation Agreement,” or “Separation and Stipulation Agreement,” or even “Property Settlement Agreement.”  The word “complaint” won’t be there at all.  If you’ve received a separation agreement, read it carefully—but don’t sign until you have a chance to have it reviewed.  If you don’t want to do anything about it at all, you don’t have to; there’s no time limit, and you’re not required to respond.  In fact, you don’t even have to read it if you don’t want to.  There’s no time limit, so you can relax and take your time.

What should I be looking out for in his complaint?

The most important thing to remember when you’re reading your husband’s complaint is to take a deep breath.  Keep in mind that he is only making allegations, and he hasn’t proven anything.  Whether it’s true or whether it’s false, he’ll have to put on his evidence and prove what he’s saying.  Just because he wrote it down in his complaint doesn’t make it true, even though it’s probably very, very difficult for you to read.

Not only that, but you’ll probably be shocked and angry to see what he’s asked for.  If he’s represented by an attorney (and, probably, even if he’s not), he’ll ask for all sorts of things—equitable distribution, custody of the children, child support, and spousal support.  Even if you’re a stay at home mom, he’ll ask for those things.  Even if you earn less and there’s no way in the world that you could pay him support, he’ll ask.  It’s normal.  It’s okay.  In fact, it’s expected.  So, take a deep breath.  Really.

Why would he do that?  Why ask for something that he would never get in a million years?  Well, mostly, his attorney is protecting himself from a potential lawsuit, because if you don’t ask for something in your complaint or counterclaim, you can’t ask the judge to award it later on.  Without putting those things in front of the judge by asking for them in those documents, the judge doesn’t have the authority to give them to either of you, even if he’d really like to.  It just doesn’t work that way.  Unless you plead properly, you won’t be able to get it.

Imagine what would happen to a lawyer who let something like that slip and then, out of nowhere, circumstances changed and the client desperately wanted (or needed) to ask for the thing that the lawyer forgot to add to the complaint.  He would get sued!  So, when you read the complaint, keep this in mind.  He’s asking for everything, but it’s not necessarily because he wants it or expects to get it.  He’s asking for everything because, by doing so, he places all those things within the jurisdiction of the court (and his lawyer is simultaneously protecting himself from a malpractice case).

The bottom line?  If your husband files first, don’t freak out.  Take a deep breath, call an attorney (if you haven’t already), and come up with a plan of attack.

Your answer and counterclaim

If your husband files first, he files the complaint.  In turn, you’ll file an answer and counterclaim.  It’s a pretty similar document.  In it, you’ll allege YOUR grounds (which may be the same or different from his), provide your supporting evidence, and ask for the relief you want.  (Again, just like him, you’ll ask for everything.)

You’ll also have a chance to respond to his allegations against you. You’ll be able to read through what he’s provided and either admit it, deny it, or, if it’s a criminal accusation (like adultery), plead the fifth.

After a complaint and an answer and counterclaim have been filed, your divorce is officially opened with the court.

 How can I find the information my husband is hiding from me?

These days, most of us are really technologically savvy.  We’re also pretty used to having our inquiries answered almost immediately.  Search engines are so highly developed that all we have to do is type our question into the search bar and click “search,” and we’re presented with hundreds (sometimes thousands) of results based on the search terms we provided.  Everything, from movie times to product reviews, can be found online.  All we have to do is ask the Internet and we get answers.

Not only that, but there are so many apps around, designed to do everything from set your home security system to tracking your calories.  Some apps give you even more information, and can do things like use the phone’s GPS to track the whereabouts of certain people.  You can check your bank account balance, pay your mortgage, and manage your credit cards, all while you play Sudoku or Candy Crush.

We’re definitely an instant gratification generation, especially when it comes to information.  We’re used to things being at our fingertips, and we expect to get the information we need quickly and easily.

What about my husband’s information?

I know, I know.  When things start going downhill in a marriage, the feeling of partnership deteriorates.  Husbands and wives who formerly thought of themselves as members of the same team start questioning each other’s motives, believing them capable of almost any kind of deception or trickery.

Is it possible?  Well, I don’t know your husband.  You’re probably the best person to judge whether there’s something that he’s hiding.  But how far can you go to find out whether he’s hiding something?  Of course, there are legal things we can do to uncover some information, but that takes time and costs money.  It’s much easier to just look into his accounts, right?  Check his email?  Read his Facebook messages?  After all, you probably already know most of his passwords.  (Most of us are pretty predictable where our passwords are concerned.)  How far can you go?

Technology has created more ways than ever to spy on our lying, cheating husbands—but that doesn’t mean it’s legal to stick our noses in anywhere.  Whether you’re looking for evidence about a hidden asset (like a bank account), or suspect that he’s committing adultery, you don’t have a free pass to hack into his accounts, open his mail, or root through his things.  Legally, husband and wife may be one—but that doesn’t mean that you have complete and unfettered access to everything, especially not if it’s already password protected.

Password Protected Accounts

It’s pretty simple: it’s against the law to break into someone else’s password protected account, even if that someone else happens to be your husband.  Whether you’re talking about his Facebook account, his email, Twitter, or bank account, you’re breaking the law if you hack your way in.  In fact, if you DO hack into his accounts, even if you get good information, we can’t use it in court.  (But HE can use it if he decides to press charges against you!)

Cell phones

As you are no doubt already aware, some cell phones are protected, and some aren’t.  These days, all cell phones have the screen lock capability, and most require some kind of passcode or fingerprint scan to get back in.  If his phone is locked, you’re breaking the law if decipher the screen lock and break in.

What if it’s not password protected?

You’re still walking a pretty fine line here.  I understand how tempting it is to do a little spying, especially if you have specific reason to believe there’s something shady going on, but, in most cases, it’s not worth it.  As an attorney, I really can’t tell you that it’s EVER okay to go through his things to look for evidence against him—I’d hate for you to get in trouble and jeopardize your case.  It’s just not worth the risk!

There are lots of non-technological ways of snooping, too, and most of those things aren’t password protected.  I don’t need to tell you, though, that if his name is on it (and yours isn’t), you probably shouldn’t be going through it.  It’s a federal offense to open someone else’s mail (and don’t think about steaming it open, either, because it usually doesn’t work—and it’s still illegal).

What if it’s my stuff, too?!

I get it.  Much of what you want to find probably has to do with the life you and he shared as a married couple.  Sometimes, when people decide to move forward with a divorce, one party decides to hide records from the other.  If your tax returns, account statements, or other documents have suddenly gone missing, you’re probably feeling frustrated and nervous—after all, what can you do without that information?  It’s hard to go to an attorney and say, “We have a house, but I don’t know how much equity there is.  We have credit cards, but I don’t know how much is on them.  We earned money last year, but I don’t know how much.”  It’s not much to go on, right?  How are you supposed to move forward if he’s keeping all the relevant information away from you?

If mail comes with both of your names on it, you’re certainly entitled to open it.  If it doesn’t have your name on it, though, it’s against the law.

As far as statements or bills or tax returns go, you can’t break into something to which you don’t already have access in order to get copies, even if they’re your statements, too.  Don’t decode the password to the safe or hack into his email to get copies of these things.  You’re absolutely entitled to copies, but you should let your attorney handle that for you.  Don’t worry; it’s totally normal that clients come in without having access to all their documents.  We’ll get them; there’s no sense in you breaking laws or hacking into anything to get it.  It’s not worth the risk.

Before you go trying something else to get at that information…

You’re smart and savvy, and you know that, if you really want to, there’s probably a way that you can find the information he’s trying so desperately to hide.  Depending on how “big brother-ish” you want to get, there are a bunch of programs and technologies out there that make it easy as pie to spy on someone else.  There are keystroke programs you can use to help decipher passwords and apps for smartphones that make it possible for you to always determine his whereabouts.  Creepy, isn’t it?

It has become so easy to spy on people that it makes us more willing to look past things that were perhaps once more easily identified as right and wrong.  Are we ignoring these distinctions?  Or do we really no longer see them?  Or is it that we feel that our husband’s shouldn’t really expect to keep anything “private” in a marriage—especially when we feel like it’s possible that he’s hiding hard-earned marital money or an extramarital affair with a friend or co-worker?  Regardless, the fact is that more and more people are asking questions about what kind of snooping is allowed—and what’s not.

What about recorded conversations?

Not every method that we use for spying is as sneaky as putting a keystroke program on the computer.  Those are all relatively new ideas, but people have been trying to get information from other people for years before those fancy, newfangled technologies were developed.  Other people, when it comes to spying, prefer attempting to record conversations (usually without informing the other person that the conversation is being recorded).

So, what’s the law where recording conversations is concerned?  In Virginia, you can only record a conversation that you are a party to; you can’t go around recording conversations between other people.  And you should definitely let him know about it, according to Virginia Code § 8.01-420.2, which says:

No mechanical recording, electronic or otherwise, of a telephone conversation shall be admitted into evidence in any civil proceeding unless (i) all parties to the conversation were aware the conversation was being recorded or (ii) the portion of the recording to be admitted contains admissions that, if true, would constitute criminal conduct which is the basis for the civil action, and one of the parties was aware of the recording and the proceeding is not one for divorce, separate maintenance or annulment of a marriage. The parties’ knowledge of the recording pursuant to clause (i) shall be demonstrated by a declaration at the beginning of the recorded portion of the conversation to be admitted into evidence that the conversation is being recorded. This section shall not apply to emergency reporting systems operated by police and fire departments and by rescue squads, nor to any communications common carrier utilizing service observing or random monitoring pursuant to § 19.2-62.

If you don’t let him know about the recording, your recorded piece won’t be admitted into evidence.  Worse, you could also face criminal charges.

So, what CAN I do?

You need to be careful, especially because you have a pending divorce.  Even though it’s tempting (and possibly really, really, ridiculously easy) to try to catch him with his pants down, so to speak, you should probably resist the urge.  In all likelihood, any information you find won’t make you feel any better.  You’ll also probably be breaking the law, depending on what you do, and could face criminal prosecution.  That’s not very fun on the best of days, but it’s even worse if your behavior hurts your divorce case later.

That being said, though, you’re certainly safe to look at anything he posts publicly to his Facebook profile.  You’re free to open mail with your name on it, too.  Basically, anything that is public, that he posted, or that you can get access to without hacking into an account or breaking into something, you’re probably okay uncovering.  If you have any questions, though, or want to make sure that your behavior won’t subject you to criminal liability, it’s always best to talk to an attorney.

If you suspect that your husband’s behavior will jeopardize your future in any way, you should also make a plan to talk to an attorney as soon as possible.  Whether he’s having an affair, hiding money, or doing something else, it may be necessary to take carefully calculated steps early in the process to protect your rights and your future.

A good piece of advice…

You should live as though you have a private investigator following you, and behave in such a way that you wouldn’t be ashamed to tell your grandmother what you’ve been up to.  Is granny a pretty tolerant lady?  Okay, maybe she’s a bad example.  Would you be embarrassed to admit to a judge what you’ve done?  A good rule of thumb: just don’t do it.

Whatever you do, you also should remember not to lie, particularly to a judge.  Judges hate liars, because they can’t trust what they say in their courtrooms.  If the judge can’t trust you, you’re making it very hard for him to rule in your favor.  Not only that, but you could be prosecuted for perjury.  That’s pretty serious!

If you live as though you have a private investigator following you and behave in a way that you won’t have to lie about in court, you’re probably making wise decisions that will serve you well as you move forward in your divorce or custody case.  It can be tempting, especially when your husband has done something terribly, terribly wrong to use any means necessary to try to catch him in the act.  After all, he deserves to deal with the repercussions of his actions, right?  Well, he probably will—but you shouldn’t take too much of the responsibility onto your own shoulders, for fear of biting off more than you can chew.  If you have questions about snooping, have been snooped on, or are just ready to  move forward with your divorce or custody case right away, give our office a call at (757) 699-5796.  We’re here to help.