Historically, Virginia has limited the availability of divorce, requiring that the spouse seeking divorce present evidence showing that the other spouse had caused the marriage to deteriorate.

If the court was not convinced of the other spouse’s fault, it could refuse to grant the divorce. Now, Virginia allows for both fault and no-fault divorce.

Fault and No-Fault Divorce

Fault. A fault divorce occurs when the spouse who files for divorce alleges that the other spouse caused the need for divorce. In Virginia, a spouse may file for fault divorce based on adultery, cruelty, abandonment for at least one year, or a felony conviction that resulted in confinement for a year or more. In the case of a felony conviction, cohabitation must not resume after the non-convicted spouse learns about the other spouse’s confinement.

A spouse seeking a fault divorce can file any time after the event giving rise to the fault divorce occurs. There is no additional waiting period except for the time included in the conditions for fault divorce, such as the requirement that the abandonment last at least one year.

One major reason people file for fault divorce is that the court may provide the innocent spouse with a larger award or save them from paying a substantial amount of support. For example, if a husband can prove that the marriage broke down because of his wife’s adultery, the court may deny alimony support to the unfaithful wife.

But the spouse trying to establish fault must do so with “clear and convincing” evidence. This is a higher standard of proof than typical civil matters and may be difficult to meet. Furthermore, fault divorce proceedings generally are more time consuming and emotionally draining than no-fault proceedings, especially when children are involved, because the non-filing spouse is likely to contest the fault and other issues. Therefore, the process will involve more litigation and cost more money.

No-Fault. A no-fault divorce allows a spouse to file for divorce without placing blame on the other spouse. The filing spouse must still provide a reason for the divorce, but the reason can be as vague as having “irreconcilable differences” or an “irretrievable breakdown of the marriage.”

Unlike fault divorces, Virginia imposes a waiting period before a spouse may file for a no-fault divorce. Before filing, the spouses must live separately for at least six months, or, if they have minor children, they must live separately for a year.

No-fault divorces can involve less litigation and costs so long as the spouses agree to settle most of the issues without court intervention. Spouses can be proactive and use the waiting period to negotiate and prepare a separation agreement concerning the division of property and assets, whether any support will be provided, child custody and visitation, and other issues. If the spouses prepare such an agreement, then they may only need to appear in court once, which will be when the judge accepts the separation agreement and finalizes the divorce.

Of course, a no-fault divorce can also be a lengthy and litigious process if the spouses do not agree on issues in the separation agreement. This is known as a contested divorce.

Contested and Uncontested Divorces

Divorces, in addition to being either fault or no-fault, can be either contested or uncontested.

Contested. A contested divorce is one in which the parties do not agree on certain issues. For example, the parties might disagree on how to divide property and debt, whether and how to share custody, and the amount of child and spousal support. If the parties cannot come to an agreement, then the court will have to decide how to settle the contested issues. The court’s decision is legally binding on the parties.

Contested divorces are usually more expensive and time-consuming because the parties need the court to determine the terms of the separation. This involves more litigation, which increases expenses. Therefore, even parties that pursue a no-fault divorce may find themselves in long, drawn out, and expensive divorce proceedings if they cannot agree on the details of separation.

Uncontested. An uncontested divorce is one in which the parties agree on a divorce settlement, usually through a separation agreement. A court does not have to decide any issues but can merely approve the separation agreement and issue a divorce decree. This is generally less expensive because only one court appearance is needed and attorneys are only involved in the negotiations rather than drawn out litigation.

Davis Law Group is Here to Help

Deciding whether to file for divorce can be difficult. The decision can be even more difficult when considering whether to pursue a fault or no-fault divorce and whether to contest certain issues before a court. If you need assistance in deciding the best route to pursue, make an appointment with our family law attorney today. We’re here to help you find the best path forward for your family as well as peace of mind.