So, you have been thinking you want a divorce, and you live in the Commonwealth of Virginia. By making that decision, you have taken the first step in the divorce process. The next step is to determine the legal grounds, or specific legal reason, for why you are filing a complaint for divorce. The grounds can affect when and how you can file for divorce. They can also affect custody, alimony, and property division.
While you may have a long list of reasons, the law of the Commonwealth of Virginia permits only certain specific grounds for divorce. These include fault-based grounds and no-fault grounds.
What are Fault-Based Grounds for Divorce?
Virginia law permits the filing of a fault-based divorce if your partner committed one or more of the following actions during your marriage:
- Adultery: Adultery is the act of having voluntary sexual intercourse with someone who is not your spouse. Virginia also includes sodomy and buggery as grounds for divorce. To use these grounds, the adultery must have taken place within the last five years. Additionally, you cannot condone the act(s), meaning no sexual relations with your spouse after learning about the transgression.
- Incarceration: If your spouse has been convicted of a felony after the start of a marriage and is placed in confinement for more than one year, you have grounds for a divorce. This fault-based ground can only be used if cohabitation has not been resumed after imprisonment.
- Cruelty: Cruelty usually involves acts of physical acts of violence. Proof can include incidents over a period of time or a single shocking incident.
- Desertion: Desertion occurs when a spouse abandons their partner. The spouse must have left against the other spouse’s wishes. Desertion cannot be used if both partners agree to separate.
The law is generally not black and white and many reasons for a divorce can fall into a gray area. It is best to speak to an attorney about your specific circumstances.
What is a No-Fault-Based Divorce?
To file for a no-fault-based divorce in Virginia, spouses without minor children must live separate and apart for six months and must have an agreement resolving your marital rights. In cases where the couple have minor children, the spouses can file for divorce if they have not cohabitated for one year. The separation must be continuous and with the intent to remain separate and apart permanently.
Which Grounds are Best for You?
Both fault and no-fault divorces have advantages and disadvantages.
A fault-based divorce doesn’t require the period of separation that is required for no-fault divorces, it can be filed immediately. If marital misconduct is proven, it could aid in other divorce proceedings like property division, alimony, and custody. And if you can reach an agreement with your spouse, you can always change to a no-fault divorce.
On the other hand, no-fault filings can sometimes be quicker and less expensive than a fault-based divorce. If the parties have already resolved property, custody and/or support issues, it avoids the difficulty and cost of having to prove the circumstances necessary to obtain a fault based divorce.
How Can I Start?
If you have questions about your circumstances, or have questions about support, custody, real estate, retirement or other issues, expert legal counsel can help. Contact Kathryn Dickerson (kndickerson@smolenplevy.com) or Alan Plevy (abplevy@smolenplevy.com) to get started.
About the Authors
Alan Plevy
Alan Plevy is a recognized force in family law, mediation and litigation, with more than 40 years as one of the most experienced divorce lawyers in Virginia. Mr. Plevy is known for being a tenacious litigator and negotiator who is zealously devoted to his clients. A top legal publication, Virginia Lawyer Weekly, noted Mr. Plevy’s impact on the law when it named two cases he litigated among its Top Five Landmark Family Law Cases in Virginia. Those two cases, which date back to the 1980s, are still regularly cited by attorneys and courts.
Kyung (Kathryn) Dickerson
Kyung (Kathryn) Dickerson is a principal at SmolenPlevy in Vienna, Virginia. She is a graduate of the University of Virginia and George Mason University School of Law, where she served on the Board of Editors for the Journal of International Legal Studies. Ms. Dickerson is also presently General Counsel for the Asian Pacific American Bar Association of Virginia and has served as President of the organization and on its Board of Directors. She has also served on the Board of Directors of the Virginia Women Attorneys Association and served as its President. She has served on numerous committees of the Fairfax Bar Association and as President of its Young Lawyers Section and as Co-Chair of the Revenue Development Committee.
