How to File for a Fault-Based Divorce in Virginia: Code § 20-91 Explained
In Virginia, you can file for a fault-based divorce immediately upon the grounds of adultery, cruelty, desertion, or a felony conviction. Proving fault requires strict evidence but can significantly shift the equitable distribution of marital property in your favor.
What is a Fault-Based Divorce in Virginia?
While many couples opt for the simpler no-fault divorce route, Virginia is one of the states that still actively allows you to file for divorce based on your spouse's marital misconduct. Governed by Va. Code Ann. § 20-91, a fault-based divorce serves as a legal declaration that one party is directly to blame for the destruction of the marriage. Filing on fault grounds in a court like the Chesterfield County Circuit Court, Chesterfield or the Loudoun County Circuit Court, Leesburg is a highly aggressive legal strategy.
Why would someone choose a fault-based divorce when it is inherently more expensive and time-consuming? There are two primary reasons: speed and leverage. Certain fault grounds allow you to bypass Virginia's mandatory 12-month separation period. Furthermore, proving that your spouse destroyed the marriage can heavily influence a judge's decision when dividing your life savings and property. Navigating this adversarial process requires an aggressive legal strategy, making it vital to find a litigator through our USA Lawyer Directory.
Step-by-Step Guide to Fault Grounds and Defenses
Filing for a fault-based divorce requires presenting actual evidence. You cannot simply tell the judge your spouse was mean; you must meet specific legal standards.
Step 1: Choosing The Four Grounds for Fault
Virginia law strictly limits fault-based divorces to four specific grounds:
1. Adultery, Sodomy, or Buggery: Engaging in sexual relations outside the marriage. Under Va. Code Ann. § 20-91(A)(1), adultery serves as a fault ground for divorce only if it occurred prior to the date of the last separation of the parties.
2. Cruelty or Reasonable Apprehension of Bodily Hurt: This typically involves physical abuse or severe emotional abuse that makes living together unsafe, as established in precedents like DeMott v. DeMott, 198 Va. 22 (VA Supreme Court 1956).
3. Willful Desertion or Abandonment: One spouse packing their bags and leaving the marital home against the wishes of the other, with the intent to end the marriage.
4. Felony Conviction: If a spouse is convicted of a felony, sentenced to more than one year in prison, and actually confined.
Step 2: Meeting the Standard of Proof
Accusing your spouse of fault is easy; proving it is incredibly difficult. For adultery, the standard of proof is exceptionally high. According to the landmark ruling in Haskins v. Haskins, 188 Va. 525 (VA Supreme Court 1948), adultery must be proven by 'clear and convincing evidence.' A simple hunch or a flirtatious text message is not enough. You generally need private investigator reports, hotel receipts, or undeniable admission to prove your case. Cruelty and desertion must be proven by a 'preponderance of the evidence' (more likely than not) and must be corroborated by an independent witness.
Step 3: Waiving the Separation Period
If you file on the grounds of adultery or a felony conviction, Virginia law allows you to file for divorce immediately. There is no mandatory 6-month or 12-month waiting period required before filing the initial Complaint. However, if you file on the grounds of cruelty or desertion, you can file for a 'divorce from bed and board' immediately to handle temporary issues, but the court will not grant the final absolute divorce decree until a one-year separation period has passed.
Step 4: Preparing for Defenses (Condonation & Recrimination)
If you file for fault, your spouse will fight back. Virginia law recognizes several defenses. 'Condonation' means you forgave the act. For example, if you discovered your spouse committed adultery, but you voluntarily resumed sleeping with them afterward, the court considers the adultery legally 'condoned,' and you cannot use it as grounds for divorce. 'Recrimination' occurs when both spouses are guilty of fault (e.g., both committed adultery); in such cases, the judge may refuse to grant a fault divorce and instead order a standard no-fault divorce.
How Fault Impacts Property Division
Virginia is an equitable distribution state under Va. Code Ann. § 20-107.3. This means marital property is divided fairly, but not always 50/50. When deciding who gets the house, the retirement accounts, or the business, the judge is legally required to consider the 'circumstances and factors which contributed to the dissolution of the marriage.' If you successfully prove your spouse committed adultery and drained the joint bank account to buy gifts for an affair partner, the judge is highly likely to award you a significantly larger share of the remaining marital assets to offset that misconduct.
How Much Does it Cost in Virginia?
Fault-based divorces are heavy litigation cases requiring extensive discovery, depositions, and trials.
| Litigation Expense | Estimated Cost in USD |
|---|---|
| Initial Attorney Retainer | $5,000 - $15,000+ |
| Private Investigator (for Adultery) | $1,500 - $5,000 |
| Subpoena and Deposition Costs | $500 - $2,000 per witness |
| Circuit Court Filing Fee | $80 - $90 |
How Long Does the Process Take?
While filing for adultery lets you skip the initial 12-month waiting period, proving fault in court takes time. Building the case, executing discovery, taking depositions, and waiting for an available multi-day trial slot on a crowded docket often takes 12 to 24 months to fully resolve.
Frequently Asked Questions (FAQ)
Is emotional abuse enough to prove cruelty?
Historically, Virginia courts required physical violence or the imminent threat of it to prove cruelty. Severe, systematic emotional abuse can sometimes qualify, but it must be so extreme that it endangers your health and makes cohabitation entirely unsafe.
Can I get a fault divorce if my spouse went to rehab?
Substance abuse or alcoholism itself is not a specific statutory ground for fault in Virginia. However, the behaviors associated with addiction (like domestic violence) might constitute cruelty, allowing you to file under that ground.
What happens if I cannot prove the adultery in court?
If you fail to meet the clear and convincing evidence standard at trial, the judge will dismiss your fault claim. However, you can usually amend your pleadings to request a standard no-fault divorce based on a one-year separation, provided the time has passed.
Can a spouse be forced to testify about an affair?
Adultery is technically a misdemeanor in Virginia, so a spouse may invoke their Fifth Amendment privilege against self-incrimination when questioned. However, under Va. Code Ann. § 8.01-223.1, the court is expressly permitted to draw an adverse inference against a party who refuses to answer on self-incrimination grounds, which can help prove fault and influence property division.
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