What kind of divorce is best for me?
The laws governing divorce are different in every state. There may be some similarities, particularly when it comes to states that are geographically close to others, but not necessarily. Different states have different rules about what’s required of you in a divorce case. In Virginia, for example, we have fault-based divorces and no-fault divorces and, depending on which kind of divorce you file, different things are required of you.
No fault divorce doesn’t mean there’s no fault at all, it just means that you’ve made a decision to move forward without taking fault into account. Why would you do this? Well, in most cases, it’s a decision made either because the parties want to keep their divorce as amicable as possible, or because they don’t want to spend the money to do everything necessary to prove the fault based grounds. In some states, you can get divorced by citing “irreconcilable differences” as your grounds. This is very similar.
In Virginia, you can’t file for a no fault divorce until you’ve been separated for the required period of time. If you have no children (or your children are over the age of 18) and a signed separation agreement already in place, you can file for divorce after being separated for six months. Otherwise, you’ll have to wait a full year.
But what does it mean to be separated? In Virginia, there’s no such thing as filing for a legal separation. You are separated when at least one of you decides to end the marriage. After that point, you have to stop cohabitating (a fancy legal word that we use to describe living together as husband and wife). You can do this in the same home or in two different places, but you’ll have to behave as though you’re really separated. That means you act like you’re separated when you’re together in your home, and you act like you’re separated when you’re out in public, too. For more information on what it takes to be separated, click here.
There are several fault based grounds: adultery, sodomy, buggery, felony conviction, cruelty, apprehension of bodily hurt, desertion, and abandonment. You can file for divorce right away if you have a reasonable belief that your husband committed one or more of these offenses, but you should also be aware that in order to get divorced on these grounds you will have to provide proof to the court to convince the judge that you’re right. If you can’t prove it to the judge, you’ll have to switch your divorce over to a no fault divorce.
If you want to allege that your husband has committed adultery, you are technically entitled to an immediate divorce. However, you should be aware that adultery is the most difficult of the fault-based grounds to prove. In many cases, attorneys typically wait until they have satisfied the statutory requirements for a no fault divorce. Why? Well, if you’re not able to prove adultery to the judge and you haven’t been separated long enough, you can’t use no fault as your back up. If that happened, the judge would deny your divorce, and you’d have to start all over again at square one. So, keep in mind that although you are entitled to an immediate divorce if you can prove adultery, it can be incredibly difficult to prove, and it is very likely that your attorney will wait the full year before scheduling your trial anyway.
What kind of divorce is best for me?
These days, probably 95% of divorces are no fault, because they’re much quicker and easier, not to mention way less expensive. However, you should know that the judge can award a disproportionate share of assets because of one party’s fault. Translation: if he screws up, you may get more. The key word there, though, is may. The judge can use fault to determine how your assets and liabilities will be distributed, but it doesn’t mean she has to use it. If you’re trying to make a decision about what’s best for you in the long run, you should definitely talk to an attorney about your specific situation and come up with a plan of action that takes your long and short term goals into consideration. To talk to one of our experienced divorce and custody attorneys today, call (757) 425-5200.