Under Virginia law, there are two types of divorce cases, fault-based and so-called“no-fault” divorces. I use the phrase “so-called” because there is nothing in the Virginia Code that says “no-fault” -- rather, it says “living separate and apart,” but it is not usual to say “no-fault” regardless.
Simply speaking, fault-based cases involve marital misconduct by one or both of the spouses, while no-fault cases are based on the spouses living physically separated from one another for a statutory period of time.
A fault-based divorce is one based on misconduct by one (or both) of the spouses.The filing party must have evidence of a specific legal basis or “grounds” to file for divorce.
InVirginia, these fault grounds include:
1) The other spouse’s adultery;
2) A prison sentence of at least one year for a felony conviction;
3) Desertion or abandonment by the other spouse; or
4) Cruelty by the other spouse that has caused some sort of physical and/or emotional harm.
In a fault-based divorce, the spouse who files for divorce must include in the initial filing (the “Complaint”) a specific list of the conduct by the other spouse that gives rise to the fault grounds for a divorce.
For example, in a fault-based divorce on adultery grounds, the filing spouse must include the specific details surrounding the adultery, including the name of the paramour, as well as the dates, times, and locations of the adulterous conduct.
The non-filing spouse may then also allege their own fault grounds against the filing spouse in their response to the original Complaint by filing a“Counterclaim.”
A key feature of a divorce case using fault grounds such as adultery is that it does not require a specific period of physical separation before the court could enter a final decree of divorce. Neither does the conviction and sentencing for a felony involving a prison sentence of more than a year. The Court does not require the other spouse to wait a year. They can file right away.
Advantages of a Fault-Based Divorce
Successfully proving fault grounds for divorce based on adultery or the conviction of a felony and sentence of more than one year allows one spouse to obtain a divorce without having to show that they have been physically separated for a set period of time. This can speed up their ability to get their divorce filed, but often even in these cases where no separation period is required, the court process itself can slow things down.
Other grounds still require a year to pass before the Court can enter a “final”decree of divorce. But that does not mean you have to wait to file for divorce. You can file right away.
For example, one spouse may have deserted the other and left the remaining spouse without any money. In that case, you may consider filing a case on the grounds of “desertion” immediately against the spouse that left, and the court could enter temporary orders for your financial support while you wait for the final decree to be issued, without having to wait the required period of time as in a no-fault divorce. The same court could also enter temporary rulings for custody and visitation of children.
Filing a fault-based divorce case will also allow you to use the power of the court to investigate and discover information about your spouse and his or her assets and income sooner rather than later.
Virginia law also allows the court to consider the fault of one spouse when determining spousal support and dividing up the marital property.
In other words, one spouse’s misconduct toward the other can impact how much that spouse has to pay (or is entitled to receive) in alimony, as well as whether property is divided equally or more favorably to one of the spouses.
Disadvantages of a Fault-Based Divorce
By its nature, a fault-based divorce case is more complex than a no-fault divorce.
Claims of misconduct in the marriage by one or both of the spouses will require investigation - interviewing witnesses, collecting documents, and possibly holding additional court hearings on the evidence and issues involved.
Because of this, a fault-based divorce case not only may take more time to reach a final decree, but also may cost more in attorney’s fees because of the additional time and work involved.
In general, the law favors marriage and disfavors divorce. The law makes it easy to get married and hard to get divorced. The law does not want divorce to be entered into lightly or without full consideration.
Therefore, even in a “no-fault” divorce, where one or both of the spouses have simply decided they want to end the marriage and have no desire (or ability) to assert fault grounds against the other, Virginia law imposes two requirements before a divorce case can be filed.
First, the spouses must show that they have lived “separate and apart” for a specified period of time before filing for divorce.
Second, a party filing for a no-fault divorce must also demonstrate that they have seriously contemplated their decision - forming and holding the intention to permanently separate from their spouse, for the entire time of the separation.
“Separate and Apart”
What does “living separate and apart” mean? Well, it certainly means living in two separate residences. But it also could mean living separately in the same house.
Virginia law allows a divorce based on a separation “under the same roof,” but these are not common and certain requirements must first be met.
If you are considering separation in the same house, be sure to discuss this in full with your attorney. You may or may not be able to get a divorce this way, depending on the facts of your case.
Separation Time Period
If a couple has no minor children, and if the couple has signed a written separation agreement resolving all issues (see our separate blog post on separation agreements), then a six-month separation is required in order to obtain a no-fault divorce.
If, however, a couple has minor children (or if they do not have a signed written separation agreement), then the spouses must live physically separated for at least 12 months in order to file fora no-fault divorce.
Can I “file”for “legal separation” in Virginia?
No -you don’t “file” for “legal separation” in Virginia.
If you are married and living separate and apart from your spouse, where at least one of you has formed the intent to permanently separate, you are “separated” under Virginia law. There is nothing to file and nothing you have to “sign” of“file” to show you are “separated.”
Now, you may very well want to sign a written agreement with your spouse (after consultation with an attorney - don’t sign one you draft yourself) before you separate or even if you have already separated.
By doing so, you can bring certainty to an otherwise very trying time, for both the spouses and any children involved. You also would protect yourself against your spouse making a claim of desertion against you. If the separation is by agreement, then you are not deserting your spouse.
Advantages of a No-Fault Divorce
A no-fault divorce is often less complex than a fault-based divorce.
The parties simply have to show that they have lived separately for the required period of time, with the requisite intent to separate permanently; there is no proof required of any misconduct by the other spouse.
This saves both time (at least with respect to the time spent in the legal system, once the case is filed) and money, as no costly attorney time will be spent investigating or proving fault.
This is especially true when the parties agree on many of the other issues involved in a divorce such as custody, support and property division.
Disadvantages of a No-Fault Divorce
One disadvantage to a no-fault divorce is that, before the divorce can actually be filed, a period of physical separation is required.
Accordingly, even if a spouse is certain they wish to divorce, they must wait either six or twelve months before they can even begin the case in court.
This requirement can be difficult emotionally.
It is worth noting, however, that this somewhat lengthy separation before filing fora no-fault divorce fulfills the public policy inherent in Virginia divorce law, discussed above, favoring marriage and disfavoring divorce.
This period does give spouses time, even in cases where no misconduct is involved, to reach certainty as to their intent to divorce, and it therefore discourages hasty decisions to end a marriage.
A separated couple can also use that time to negotiate and finalize a separation agreement, if they are so inclined, which can simplify their court case when the time comes.