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Divorce can be a challenging and emotional process, and Virginia’s laws can be complex. If you are considering a divorce in Virginia, it is important to understand the difference between the two options for divorce - a fault-based divorce and a no-fault divorce. 

Virginia recognizes a “no-fault” divorce, which means that there is no need to prove wrongdoing on behalf of their spouse. While the Virginia Code does refer to such divorces as “no-fault” - instead it says “living separate and apart” - it acts as a no-fault divorce. In this divorce, parties must show that they have been living “separate and apart” for a specified period of time before filing for divorce and the filing party must demonstrate that they have seriously contemplated their decision. Parties must live “separate and apart” without cohabitation for: one year if the couple has minor children, or six months if the couple has no minor children and have signed an agreement.  Interestingly enough, living "separate and apart" can actually occur with both parties living under the same roof, provided the intent of at least one party is for the separation to be permanent. Often no-fault divorces are uncontested - meaning the opposing party is agreeable to the divorce.

No-fault, uncontested, divorces are often preferred because they are less contentious, less expensive and tend to be less drawn out.  Because of the intensive nature of litigating contested divorces, our office limits the number of contested divorces that we accept at any given time.

Virginia also allows for fault-based divorce, where one spouse alleges that the other spouse’s conduct led to the end of the marriage. Grounds for a fault-based divorce in Virginia include: adultery or sodomy committed outside the marriage, cruelty or reasonable apprehension of bodily harm, desertion or abandonment for at least a year, or conviction of a felony resulting in confinement of more than one year. In Virginia, a fault-based divorce requires the filing party to provide evidence to support the claim of wrongdoing by their spouse. Within the Complaint the filing spouse must include the specific conduct by the other spouse that gives rise to the fault grounds for a divorce. The non-filing spouse may file a Counterclaim in response to the Complaint alleging their own fault grounds. Those grounds then need to be proven. 

Fault-based divorces can proceed without the waiting period, but they often involve greater conflict and substantially higher legal costs due to the need to prove misconduct in court. This is helpful in situations where a spouse needs immediate relief and needs to get the process started quickly due to their situation. 

Choosing between a fault and no-fault divorce can influence the court’s decision in several ways. In Virginia, marital property is split equitably, not equally- meaning it is not split 50/50. The courts will take into account the length of the marriage, the reason for the divorce, each party’s financial situation and more and decide the best way to divide assets. Marital fault can factor into how the property is divided. For example, a finding of adultery acts almost (but not always - Judges have some wiggle room here) as a complete bar on spousal support in Virginia. 

To file for divorce in Virginia, one spouse must have lived in the state for at least six months before filing. The divorce process begins with one spouse preparing and filing a Complaint for Divorce in the Circuit Court of the county or city where either spouse resides. The Complaint must include both parties' names and addresses, the date and place of marriage, the grounds for divorce, and information about children, support, and property, if applicable. The court will issue a Summons which explains that the Complaint has been filed. The other spouse will then be served the Summons along with the Complaint for Divorce. This can be done through the sheriff’s office or a private process server. The served spouse will then have 21 days to file an Answer and Counterclaim or other response. Deadlines in divorce cases are important, and missing the deadlines can be very harmful to your case. After being served, both parties will typically attempt to negotiate the divorce. If the parties agree on all terms the divorce can be uncontested and end quickly. If the issues remain unresolved, there will be a court hearing. Once all issues are heard in trial, the court will enter a Final Decree of Divorce, legally ending the marriage. 

Virginia offers two divorce options and the right choice depends on the circumstances. For many couples, a no-fault divorce offers an amicable and cost-effective option. But, in cases of serious misconduct, a fault-based divorce may be necessary. 

If you are considering filing for divorce in Virginia, whether it be fault-based or a no-fault divorce, it is important to have a knowledgeable attorney that you can trust. The family law attorneys at Ambler Law Offices, LLC may be able to help guide you through each step of the process. Call today for a consultation at (540) 550-4236.  Divorce consultations are typically handled in-person, and require at least an hour long consultation.  Due to scheduling, we may be unable to provide a consultation immediately.  We also limit the number of contested divorces that we accept at any given time - in order to ensure each case is given the amount of attention required.  Divorce consults typically are paid consults, with you paying for at least an hour of attorney time up-front.

The above information is general information only and is not intended to provide legal advice.