Fault grounds in Virginia: Part One

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.

Today, we covered all the possible fault based grounds for divorce in Virginia: adultery, sodomy, buggery, cruelty, apprehension of bodily hurt, desertion, abandonment, and felony conviction.  On Wednesday, we’ll talk in more detail about how to file for divorce, including how you’ll file, why you might want to file, and what happens if he files first.

Fault based divorces are definitely more complicated than no fault divorces, but, in some situations, you may have no other alternatives.  The best thing you can do to protect yourself is exactly what you’re doing now.  Get the information, make a plan, and figure out the best way to move forward and protect yourself, your family, and your assets.  For more information, or to make an appointment to talk to one of our licensed and experienced Virginia divorce attorneys, give our office a call at (757) 425-5200.

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