When is it good to file your Virginia divorce on fault grounds?

Posted on Sep 25, 2013 by Katie Carter

I always try to urge my clients to think carefully about whether they want to pursue a fault-based divorce rather than a no-fault one. Normally, we take a look at the situation together, and try to come up with a plan that best addresses her unique concerns. In most cases, it’s really not worth it to spend a lot of time and money trying to prove to the court that the alleged fault actually occurred. Think about it: if you’re trying to prove adultery, for example, you’ll have to prove it. You’ll have to go to court, and you’ll have to pay your attorney to prepare, and you’ll have to convince the court that you’re right.

Once you’ve spent that money fighting in court, do you think there will be more or less left over for you to split after the divorce?

Still, determining whether you should pursue a fault-based divorce is something that you should do with the help of an attorney. Though in most cases it is most advantageous to pursue a no-fault divorce, there are cases where it is more advantageous to file on fault—at least initially. But why would we want to do that?

Well, the good thing about fault-based divorces is that you don’t have to prove it to file it. You just have to have a reasonable belief that the adultery, for example, occurred. And, because it’s adultery, you don’t have to wait until your year of separation is up to actually file. You can file immediately, and the benefit to that is that you can get into court early.

In a lot of cases, when the marriage starts to go downhill, the husband will start having his paycheck direct deposited somewhere else, completely cutting the wife off from access to necessary marital funds. If you find yourself in a position where you will be unable to pay the bills, a pendente lite (temporary support) hearing is critical.

At your temporary support hearing, the judge can establish temporary child and spousal support, temporary child custody, and lots of other things. The judge can order that your husband maintain you on his insurance until the final divorce decree is entered, can ask him to refrain from bothering you at home or at work, can grant you exclusive possession of the marital residence (that’s a biggie), can order him to stop wasting marital assets, and can refuse to allow him to have unrelated overnight guests of the opposite sex while the children are present. It’s a pretty valuable hearing!

Strategically, the pendente lite hearing can be absolutely critical, especially if you find yourself, at the beginning of your divorce case, without a penny. This strategy can be really effective, especially because you aren’t limited to a fault-based divorce just because you initially filed that way. It happens all the time that divorces we thought were going to be litigated end up settling, so it’s definitely possible to file on a fault-based ground and then switch your divorce over, later, to a no-fault divorce.