You've made the difficult decision to end your marriage, but now you've got to decide whether you should file for a no-fault divorce based on separation, or pursue fault-based divorce grounds like adultery or cruelty. The path you choose affects everything from how long the process takes to whether you'll need to gather evidence of wrongdoing.
Each route to divorce under Virginia law has its own timeline, requirements, and potential impact on property division and support. An experienced Chesapeake family law attorney can guide you toward a more informed decision about which approach best fits your circumstances and goals.
What Is No-Fault Divorce in Virginia?
No-fault divorce allows couples to end their marriage without proving that either spouse did something wrong. Under Virginia Code § 20-91(A)(9), you can obtain a no-fault divorce by living separate and apart without cohabitation for the required period of either six months or one year, depending on your situation.
The six-month option applies when couples have no minor children and have signed a separation agreement addressing property division, support, and other issues. All other cases require a full year of separation.
This separation period begins when spouses stop living together as husband and wife, even if they remain in the same house due to financial constraints.
Fault-Based Divorce Grounds in Virginia
Under Virginia law, a spouse may seek a divorce on fault-based grounds without needing to complete a separation period. To use these legal grounds, you must demonstrate your spouse committed specific acts that make continued marriage intolerable.
Adultery
Adultery is one of the most frequently used fault grounds in Virginia. The accusing spouse must present clear and convincing evidence that their partner engaged in a sexual relationship outside the marriage, like hotel records, explicit messages, or witness accounts. Virginia courts require more than just one spouse’s word. Corroboration is essential. A claim supported only by personal testimony is not enough to prove adultery in court.
Virginia law imposes a five-year statute of limitations on adultery claims. This means you must file for divorce within five years of discovering the adultery, or the court will bar you from using it as grounds. Additionally, if you continue living with your spouse as husband and wife after learning of the affair, the court may find that you forgave the misconduct.
Cruelty and Reasonable Apprehension of Bodily Harm
Cruelty covers both physical violence and threats that create a reasonable fear of future harm. The cruelty must be serious enough to make continued cohabitation unsafe or unreasonable. Evidence might include police reports, medical records, photographs of injuries, witness testimony, or documented threats.
Willful Desertion or Abandonment
Willful desertion happens when one spouse deliberately leaves the marital home without a valid reason and with no intention of returning. To qualify as desertion under Virginia law, this separation must last at least a year. Unlike mutual separation in a no-fault divorce, desertion is unilateral. One spouse walks away, while the other does not agree to the separation.
How Divorce Grounds Affect Financial Outcomes
Whether you pursue a contested or uncontested divorce can significantly influence how property and support issues are resolved. Similarly, your choice between no-fault and fault-based divorce grounds can also impact these financial outcomes.
Property Division
Virginia follows equitable distribution principles under Virginia Code § 20-107.3, meaning courts divide marital property fairly but not necessarily equally. While fault generally doesn't impact property division, exceptions exist when marital funds were used to support an adulterous relationship.
For example, if marital savings were spent on gifts for a paramour or maintaining a separate residence for an affair, the innocent spouse may receive a larger property award to compensate the marital estate.
Spousal Support
For support purposes, Virginia Code § 20-107.1 specifically bars spousal support for a spouse whose adultery caused the divorce, unless denial would create manifest injustice. When determining spousal support, courts also consider contributions to the marriage, length of marriage, age and health of both parties, earning capacity, and standard of living during the marriage.
Manifest Injustice Explained
Manifest injustice occurs when completely denying spousal support would produce an unfair result given the totality of circumstances. Courts frequently consider this exception in cases involving long-term marriages where one spouse sacrificed career opportunities, significant income disparities between spouses, or serious health issues that affect earning capacity.
Weighing the Pros and Cons of Each Approach
Both divorce approaches under Virginia law offer distinct advantages and drawbacks.
Possible Benefits of No-Fault Divorce
No-fault divorce typically costs less because it requires minimal evidence gathering and fewer court appearances. The predictable timeline helps both spouses plan their futures, and this approach maintains privacy since personal details don't become part of the public court record.
When Fault-Based Divorce Might Make Sense
A fault-based divorce may be the better option in situations involving adultery, abuse, or abandonment. It lets a spouse file right away rather than waiting out a separation period, and it can influence key issues like spousal support.
That said, pursuing a fault-based claim comes with hurdles. Adultery must be proven with strong, independent evidence, and it must fall within Virginia’s five-year statute of limitations. High-conflict, fault-based divorce cases often involve higher legal fees, extensive fact-finding, and more drawn-out court proceedings.
Impact on Child Custody Decisions
In child custody cases, Virginia courts focus first and foremost on what serves the child’s best interests. If a parent has a history of domestic violence, substance abuse, or other harmful behavior that serves as grounds for a fault-based divorce, those issues can strongly influence the court’s decision.
Adultery alone typically doesn't affect child custody decisions unless the extramarital relationship exposed children to inappropriate situations or neglected their needs. No-fault divorces often allow parents to focus on creating cooperative parenting plans rather than relitigating past conflicts.