Is it better for me to file using fault or no fault grounds for divorce?

Posted on Sep 16, 2024 by Katie Carter

 

One of the unique things about Virginia when it comes to divorce is that we still allow fault based grounds for divorce!  Over the years, many states have modernized to the point that they only allow no fault grounds, but we’re one of the few holdouts.  We still allow adultery (as well as sodomy and buggery), cruelty, apprehension of bodily hurt, desertion, abandonment, and felony conviction as grounds for divorce.

Oh, yeah – and adultery is also a crime!  It’s a Level IV misdemeanor and it’s rarely prosecuted, but – we’re one of the few left at this point that still criminalizes it.  (This means that adultery is the most difficult of the fault based grounds to use for divorce because it requires proof by clear and convincing evidence, as opposed to the preponderance standard used in other fault based grounds for divorce – but more on this coming up on Wednesday.)

So, what’s better?  Fault versus no fault divorce?

Better is relative, right?  It’s not that one set of grounds for divorce is created differently from another, but it can be a question of strategy.

Basically, there are two ways to get a divorce in Virginia.  Either you and your soon-to-be ex work together and negotiate an agreement that formally divides all of your assets, liabilities, and responsibilities between you (a ‘no fault divorce) or you go to court and you let the judge decide (which can be either fault or no fault based).

Fault-based grounds just mean that you’re using fault – adultery, sodomy, buggery, cruelty, apprehension of bodily hurt, desertion, abandonment, or felony conviction – to make up your grounds for divorce.  Because you must have grounds to file for divorce, you can use these or you must use no fault grounds, which are based on your having satisfied the statutorily required period of separation – in Virginia, this is one year (also a bit of an anomaly nationwide; a year is a long time!) or six months if you meet two criteria.  If you (1) do not have any minor children born or adopted by you and your soon-to-be ex, and you (2) have a signed separation agreement, you can finalize your divorce after six months of separation.

No fault grounds are satisfied purely by having met the required period of separation.  In a fault-based divorce, on the other hand, there are STILL required periods of separation, unless you allege AND prove adultery (or sodomy or buggery – we group these together, but often use ‘adultery’ as a catch-all to describe all three types of acts).  In a case where adultery is involved, you could technically get an ‘immediate’ divorce – but don’t get too excited.  Chances are virtually 100% that you’ll have to be separated for a year, too.

In all of the other fault based grounds, you also have to be separated for a year before you can finalize your divorce – but the upside is that you can FILE for divorce sooner.

Why might I want to file for divorce sooner, rather than later?

In my experience, there are three reasons you might want to file for divorce: (1) you don’t know the full extent of the assets and liabilities, (2) your husband won’t agree to sign an agreement, and/or (3) you need access to temporary child support and/or spousal support NOW.

It’s less a question of what specific grounds you want to use than what specific steps you want to take to get you from where you are now to where you want to be – which, ideally, is happily divorced.  There can be lots of reasons you might choose to file on fault – usually, to get in to court to conduct formal discovery or to have a pendente lite hearing – but that’s a strategic choice that you should examine alongside an attorney you trust.

In a no fault divorce, on the other hand, you usually don’t file for divorce until the statutory period of separation has run.  The end goal here is to negotiate a separation agreement so that you can resolve your case yourselves, without the judge ordering how your assets should be divided and custody and visitation should be handled.  The problem is, though, that without the gravity of the court behind you, it can be hard to force the other party to participate meaningfully in the process.

One of the worst situations I come across in family law is when a woman is so scared of going to court (and, hey –  everyone is scared, it’s totally normal) that she does everything she can to avoid it.  Her husband makes it sound like, with just one or two tweaks to the proposed agreement, he’ll be able to sign – but he moves the goalpost over and over again until she has exhausted all of her resources trying to make a no fault divorce happen.

The decision to either fault on fault or no fault grounds is a personal one; there’s not necessarily a right of wrong decision, but it is an important one that you should make in full understanding of the advantages and disadvantages associated with your specific choices.  One isn’t ‘better’ than the other necessarily, but you definitely don’t want to find yourself in hot water – whether because you tried to negotiate until your money was gone and you had no ability to move things forward in court, or whether you played it a little too aggressive to start and now any possibility you might have had of resolving things amicably is nonexistent.

Talk to an attorney about your situation and get advice tailored to you!  For more information or to learn more about fault and no fault divorce, download our guide to Virginia divorce for women or register to attend an upcoming divorce seminar.