By Adam T. Kronfeld of Duff & Kronfeld, P.C. posted in Family Law on Thursday, June 22, 2017.
In Virginia, there are two broad categories of contested divorces: fault-based divorce and no-fault divorce. Virginia recognizes several grounds on which one can obtain a divorce based on specific bad behavior by the other spouse. A divorce based on one of these fault grounds may confer certain legal and procedural benefits upon the spouse seeking the divorce. At the beginning of the divorce process, a fault ground will permit you to file immediately, rather than having to wait a year to file for a no-fault divorce. In the longer term, proving a divorce based on a fault ground can impact the division of property and can bar the guilty spouse from collecting spousal support.
The primary grounds for a fault-based divorce in Virginia are as follows:
- Adultery, sodomy or buggery. A spouse is guilty of adultery if they have sexual intercourse outside of the marriage; the latter terms denote particular sexual acts that may or may not be considered “sexual intercourse” in and of themselves. It is important to note that sexual relations is a required component of this fault ground, and that an emotional affair or romantic relationship does not constitute “adultery.”
- Desertion. The fault ground of desertion is a bit peculiar. Under the law, a spouse is guilty of desertion where he or she intentionally breaks off matrimonial cohabitation and “leaves” the marital relationship without the consent of the other spouse and without sufficient justification to leave the marriage. Under the existing law, the fact that a marriage has broken down over time and that the spouses have irreconcilable differences is not technically a legal justification.The question, then, is whether every spouse who moves into a spare bedroom or into a separate home over the other’s objection is necessarily “deserting” the marriage. As a practical matter, the answer is “usually not.” In practice, it usually takes a more abrupt and extreme abandonment of the marriage and its trappings before desertion will be found. However, as with all divorce and family law matters, each specific situation must be evaluated on its own facts.
- Cruelty. A spouse who commits repeated acts of physical abuse – or even a singular but very severe act of abuse – may be guilty of cruelty. The existing body of appellate law appears to require physical abuse, although numerous trial courts have allowed divorces to proceed on the cruelty ground where the abuse is emotional and psychological. However, in those instances, the non-physical abuse generally has had to be persistent and severe.
- Constructive Desertion. This ground for divorce essentially contends that the other spouse, through his cruelty, has forced the filing spouse to desert the marriage.
- Felony Conviction. If your spouse is convicted of a felony, sentences to a term of incarceration of one year or more, and actually begins serving that term, you may sue for a fault-based divorce on that basis. Notably, the crime committed by your spouse does not have to have been committed against you.
If you have any questions or would like to discuss your legal matter with an attorney, please contact Duff Kronfeld & Marquardt, P.C. for a complementary, 30-minute consultation (703) 591-7475.