Should I file my VA divorce on fault or no fault?

Posted on Jul 12, 2021 by Katie Carter


It’s not difficult to have fault based grounds for divorce. In many cases, as the marriage has broken down, one or both of the parties have committed adultery, been cruel or caused an apprehension of bodily hurt, or deserted or abandoned their spouse.

Still, I often feel like the general impression that women have is that, if they have fault based grounds, they should use them.
I don’t know whether it feels like morally it makes more sense to use the grounds you have or whether they mostly believe that, for one reason or another, using his fault for your grounds will yield a better result.

In most cases, using fault based grounds is not a golden ticket. In most cases, it will not yield more of the assets or more judicial favor. In most cases, it makes almost no difference at all, except that it means that the case will almost certainly take longer and cost significantly more.

If a woman tells me that she wants to file on fault, my immediate question is “Why?”, and then followed by, “What do you hope to achieve?”

There are lots of good reasons for filing on fault. The fact that he won’t sign a separation agreement, that you aren’t aware of what assets and liabilities there are, or in an attempt to have a pendente lite hearing and get temporary child and/or spousal support awarded are all good reasons to consider filing on fault.

There are lots of not so good reasons for filing on fault, too – but mostly there are uninformed reasons. I think that the existence of fault based grounds (and, of course, the actual semantics of referring to those grounds as ‘fault’ based) sort of implies that there is some benefit of using them for the party who is not at fault for the breakdown of the marriage. It’s often hard for women to wrap their minds around the fact that, in their case, the fault based grounds may not have the impact that they hoped that they would have.

I’m absolutely not saying that it’s never a good idea to file on fault. What I am saying, though, is that if you do decide to go that route, for whatever reason, you should have a good answer as to why you’re doing what you’re doing. It may be that you have no other choice, in which case you’d HAVE to use your fault based grounds. But it often happens, too, that there is a choice in the matter, and that the choice made is one that is emotionally driven, rather than legally driven.

As I write this, I only just hung up the phone with a consult of mine who told me about how, during the course of her marriage, her husband fathered not one but two children with a girlfriend. I’ve seen hundreds of other cases, too, but this one is freshest in my mind. In this case, the husband was agreeable on almost every point – support, custody, retirement, what to do with the marital residence – so, even though he committed a really, really egregious fault, what would be the point of filing on fault?

Ultimately, in order to spend the kind of money that it would cost to support a contested divorce case, and even to invest the amount of time needed to get all the way through to a contested divorce trial, it’s wise to have a real reason.

At the end of the day, most people’s goals are the same: to get the best result possible in their case with the least amount of money expended. Right? Because, at the end, you’ll have to start your life over, and you’ll want a good result and as much money as possible to fuel that venture so that you can be successful in your post-divorce life.

Every choice you make through the divorce should be based on facts and carefully calculated to yield the results you want to see. I’m not saying that I can’t understand why someone whose husband has fathered two children outside of their marriage would want to file on fault. I’m also not saying that she would have any difficulty in proving it, if she really wanted to.

I’m just not sure what difference it would make since, in most cases, one spouse’s adultery really isn’t enough evidence for the court to give the innocent spouse more of the assets. It often doesn’t matter very much in custody determinations, either – if at all. After all, custody and visitation decisions are made based on the best interests of the child standards, and these days the courts really live and die by the belief that having both parents involved to the greatest degree possible is what’s best for the child.

And, after all, an affair says very little about a person’s parenting. (Unless, of course, there are facts I don’t know – like that the adultery took place with a prostitute who also had a conviction on child pornography charges and that the tryst took place in a hotel room where the child was also present, or something horrible like that. Don’t worry – I made these facts up to support my argument here, this is not coming from a real case!)

Maybe there’s a good reason to file on fault. That’s entirely possible; we do contested divorces every single day! But it’s also definitely worth asking questions, considering possible alternatives (including advantages and disadvantages), and even just sleeping on it. There’s no real rush, and no reason to make a quick emotional decision that will cost you more in the long run.

For more information, to request a copy of our divorce book, to get more information on our divorce seminar, or to schedule a consultation, give our office a call at 757-425-5200.