The Four Fault-Based Grounds For Divorce In Virginia

In Virginia, divorce can proceed either as no-fault or fault-based. A no-fault divorce requires the couple to live apart for a designated time, with no accusations of wrongdoing. In contrast, fault-based divorces occur when one spouse seeks to dissolve the marriage based on specific misconduct by the other.

While fault-based divorce can be more contentious, it can also play a significant role in decisions about spousal support, property division, and child custody. Understanding the legal grounds for fault-based divorce is crucial if you plan to take this pathway.

Each ground has its own legal requirements, challenges, and potential impacts on divorce outcomes. Having the right information about these fault-based grounds is a key part of protecting your rights.

This article explores the four fault-based grounds for divorce in Virginia: adultery, cruelty or bodily harm, desertion, and felony conviction. It will also explain how The Irving Law Firm can provide legal support throughout the process.

Adultery

Adultery is one of the most well-known grounds for divorce, but it’s not as simple as accusing a spouse of cheating. Under Virginia law, adultery is defined as voluntary sexual intercourse between a married person and someone who is not their spouse. This breach of marital trust can be emotionally devastating, but in a legal sense, it can also significantly impact the divorce process.

Burden Of Proof

Proving adultery in court is no easy task. The accusing spouse must provide “clear and convincing” evidence, which means it must be highly persuasive and credible. Suspicion alone isn’t enough. The evidence can include text messages, photographs, emails, or even witness testimony, but it needs to be concrete.

Private investigators are sometimes hired to gather proof of the affair, and their findings may be used in court. However, the accused spouse may deny the allegations, making the process even more challenging. This is why strong, irrefutable evidence is critical to winning a case based on adultery.

Effect On Divorce Petition

If proven, adultery can have a profound effect on the divorce. In Virginia, a spouse found guilty of adultery is generally barred from receiving spousal support unless denying it would cause undue hardship. Additionally, adultery can affect how marital property is divided.

For instance, the innocent spouse may receive a more favorable share of the assets. However, adultery rarely impacts child custody unless the affair somehow harmed the children or compromised their well-being.

Timing Is Important

Timing matters in adultery cases. Virginia law requires that adultery be raised as a ground for divorce within five years of the act. If the adultery happened more than five years ago, it cannot be used as a basis for the divorce.

Adultery may complicate the divorce process, but with proper legal representation, it can also work to the advantage of the innocent spouse. Next, learn how cruelty or bodily harm can serve as grounds for divorce.

Cruelty Or Bodily Harm

Cruelty or bodily harm is another recognized fault-based ground for divorce. Cruelty is defined as any behavior that endangers the life, health, or safety of a spouse. While physical violence is an obvious example, emotional abuse can also be considered cruelty if it makes the marital relationship intolerable. Imagine living in a constant state of fear or anxiety—no one should be forced to endure such conditions.

Virginia courts take cruelty very seriously, but like adultery, it must be proven with clear evidence. Physical cruelty can be easier to document through police reports, medical records, or photos of injuries.

Emotional cruelty, on the other hand, often requires testimony from the abused spouse or witnesses. This could include verbal attacks, threats, or behaviors designed to cause severe psychological distress.

Effect On Child Custody

In cases of cruelty, the stakes are high, particularly when children are involved. The court may limit or deny custody to the abusive spouse, prioritizing the children’s safety and well-being. Protective orders may also be issued, preventing the abusive spouse from returning to the family home or having unsupervised access to the children.

Additionally, cruelty can influence how marital property is divided. The court may award a larger share of assets to the victimized spouse, acknowledging the suffering they endured.

Proving Cruelty

One of the key elements in proving cruelty as grounds for divorce is showing that it was not an isolated incident. Virginia courts generally require that cruelty be part of a sustained pattern of behavior.

A single incident of violence or emotional abuse may not be enough to qualify unless it is particularly severe. Typically, the abuse must have occurred over a period of time, showing that the marriage has become dangerous or intolerable.

Next, here’s a look at desertion or abandonment, another fault-based ground for divorce that can leave lasting legal consequences.

Desertion Or Abandonment

Desertion, also referred to as abandonment, happens when one spouse leaves the marital home and the marriage itself without a justifiable reason. Think of it as one partner walking out on the marriage and never looking back.

For desertion to serve as grounds for divorce, the spouse who leaves must do so with the intention of ending the marriage. This is different from legal separation, which is a mutual decision by both spouses to live apart temporarily.

To prove desertion, two key elements must be demonstrated. First, that the deserting spouse intended to end the marriage, and second, that they ceased living with their partner. If a spouse leaves the home due to violence, abuse, or other justifiable reasons, that is not considered desertion. The remaining spouse must prove that the deserting spouse left without cause and did so with the intention of permanently ending the marriage.

Desertion can have serious legal consequences for the spouse who leaves. In many cases, the deserting spouse forfeits their right to receive spousal support. This ground can also impact how the court divides marital property, often favoring the spouse who was abandoned.

When children are involved, desertion may influence custody decisions as well. The court may view the deserting spouse as less fit to have primary custody, particularly if their departure negatively impacted the children.

Desertion must generally last for at least one year before it can be used as a valid ground for divorce. This time requirement helps ensure that the leaving spouse truly intended to abandon the marriage and wasn’t simply taking a temporary break.

Next, you’ll examine how a felony conviction can serve as grounds for divorce.

Conviction Of A Felony

A felony conviction is another fault-based ground for divorce, and it can have a profound effect on the marriage. When a spouse is convicted of a felony and sentenced to more than one year in prison, the other spouse has the legal right to file for divorce. A lengthy prison sentence essentially disrupts the marriage.

Virginia law requires that the felony conviction occur during the marriage and that the convicted spouse is imprisoned for more than a year. If these criteria are met, the other spouse can file for divorce without having to meet the usual separation requirements. The emotional toll can be overwhelming, particularly if the crime involves violence or harm to others.

A felony conviction affects more than just the emotional aspects of the marriage—it can also have practical consequences. The convicted spouse may lose certain marital rights, such as the ability to claim spousal support.

In some cases, the court may award a larger share of the marital property to the innocent spouse, particularly if the felony conviction resulted in financial or emotional harm to the family. The convicted spouse’s ability to obtain custody or visitation rights with their children may also be restricted, especially if the crime involved harm to the children or created an unsafe environment.

Pursuing a divorce based on a felony conviction is often less contentious than other fault-based grounds, as the facts of the case (such as the conviction and sentence) are usually clear. However, the impact of the crime on the family can make the process emotionally challenging.

Next, here’s a look at how The Irving Law Firm can help individuals facing a fault-based divorce.

Let The Irving Law Firm Help You

The Irving Law Firm in Arlington is well-equipped to handle all aspects of family law, including fault-based divorce cases in Virginia. Our team of skilled attorneys understands the legal and emotional challenges of ending a marriage. We focus on providing personalized legal representation, whether that involves adultery, cruelty, desertion, or felony conviction.

Fault-based divorces often involve more complex legal proceedings than no-fault divorces. The Irving Law Firm’s attorneys are experienced in gathering the evidence necessary to prove fault. They work closely with clients to document instances of misconduct, whether it’s through witness testimony, photos, or official reports. Their thorough approach ensures that clients are fully prepared to present their cases in court.

We are also committed to helping clients protect their rights throughout the divorce process. Whether it’s negotiating for a fair division of marital property, seeking spousal support, or securing child custody, our firm provides strong representation at every step. We understand that every client’s situation is unique, and take the time to listen.

For anyone seeking a divorce lawyer in Arlington, VA, our firm offers consultations to discuss your options and help you make informed decisions. We are dedicated to protecting your rights and helping you achieve the best possible outcome in your divorce case.

Summary

In Virginia, four fault-based grounds for divorce are recognized: adultery, cruelty or bodily harm, desertion, and felony conviction. Each of these grounds carries specific legal requirements and can have far-reaching consequences for the outcome of a divorce.

Adultery can result in a spouse losing spousal support, while cruelty or bodily harm can influence child custody decisions and lead to protective orders. Desertion, when one spouse abandons the marriage without cause, affects alimony and property division. A felony conviction can terminate a marriage when the convicted spouse is imprisoned for more than a year.

The Irving Law Firm’s experienced team of Arlington, VA divorce attorneys offers personalized legal representation for those facing fault-based divorce. Whether it’s negotiating for fair asset division or advocating for your custody rights, their team is dedicated to achieving the best possible result for their clients.