A few decades ago, if you would have been filing for a divorce, you would have needed to prove the reason for the same. Usually, the reasons involved adultery on the part of one of the spouses.
However, as the civilizations evolved and we learned more about human behavior, divorce laws also needed to be changed.
Today, most states offer two types of divorce – at-fault and no-fault. And the state of Virginia is no different. Although the general outline for the types of divorce cases remains the same in all states, the laws around them vary from state to state.
In this article, we’ll mainly focus on these two divorce types for the state of Virginia only.
Typically, in a no-fault divorce, both the separating spouses mutually agree to the marriage annulment. Though, the grounds on which the separating couples may seek a divorce may vary.
The most common of all the grounds for seeking a no-fault divorce is “irreconcilable differences.” In other words, both the spouses agree that the marriage has reached a point where an irreparable breakdown has taken place.
Generally, the defending spouse cannot contest or object to the other spouse’s petition for a no-fault divorce. If it happens, the court may consider the objection as proof of irreparable breakdown.
In the state of Virginia, the grounds for a no-fault divorce depend on separation. It means that the separating couple would have to go through a legal separation procedure to qualify for a no-fault divorce. Also, the separating couple must prove that they have had no sexual relations for at least a year.
It is noteworthy that the court may reduce the one year down to six months under certain conditions. However, to qualify for this shorter timeframe, the couple must have undergone a legal separation agreement. Also, it would be an added benefit if the couple does not have any minor child from their marriage.
While a no-fault divorce may seem like an uncontested divorce, the truth is – it isn’t. Though the couple filing for a no-fault divorce mutually agrees that they want the marriage to be dissolved, there are usually other issues to contest. Your attorney would suggest you contest other expenses involved in the divorce. For instance, paying alimony, child support, and custody, property, assets, and debt distribution are some of the common grounds to contest in a no-fault case.
By now, you would have a pretty good idea about what an at-fault divorce case means. Still, to put it into words – when either of the spouse files for a divorce due to the other spouse’s fault, the case is generally referred to as at-fault divorce.
Generally, an at-fault divorce case is based on one or more of the following grounds:
- Willful abandonment for at least a year
- Sodomy committed outside marriage
- Conviction of a felony
- Cruelty or abuse by one spouse on the other
Generally, a fault-based divorce requires the other spouse to defend against the faults. However, it is worth remembering that a divorce case based on adultery cannot be filed if the couple has been cohabitating after learning about the fault. More so, adultery cannot be used as a ground even when the misconduct happened more than 5 years ago when filing for divorce.
Ideally, your attorney would suggest you go for a no-fault divorce. Often there is a downside to using fault-based grounds for filing a divorce. For instance, proving the fault in the first place is a burdensome task. On top of it, you’d be bearing a lot of additional expenses, such as lawyer’s fees, witness support, etc. All in all, this could ratchet up the stress, and you’ll most likely find yourself in more trouble than before.
In several states, though, there is usually no legal or financial benefit to pursuing a fault divorce. However, in the state of Virginia, there might be some economic benefits to a fault divorce.
To put this into perspective, if a spouse is found guilty of adultery the courts may forfeit alimony benefits. Given that forfeiting alimony would not affect the spouse financially, emotionally, or physically. But, the courts would need solid and convincing evidence in such cases that should support the spouse’s alimony claim.
It is also noteworthy that the courts may consider more than one fault when deciding spousal support. For instance, if the grounds for divorce include adultery, felony charges, and abandonment then the course may increase the alimony value.
The impact of fault-based grounds can be far-reaching. For example, courts also consider these grounds when distributing marital property, assets, and debts.
When it comes to Virginia’s use of fault-based grounds for the dissolution of a marriage, the applicants are more likely to go for an at-fault divorce. And clearly, spousal support and property distribution are some of the most prominent reasons for it. But, at the same time, this could also mean more prolonged and more contentious divorce procedures. And it needs no mention; this could mainly be not good for children involved in the annulment of marriage.
It is, thus, suggested that you should carefully consider whether there are any benefits in going for a fault-based divorce. Of course, you should discuss your case with your attorney. Most likely, they’d suggest other alternatives such as a divorce by affidavit.
Going through a divorce is not only distressing for the separating couple but all concerned and involved. If there is even the slightest of a chance that you can work out your marriage it is better to opt for mediation. Or you can also seek a year’s observation period from the courts. If all goes well, you can continue to live up your married life, happily, once again.
In case, nothing seems to work out, you can go for a no-fault mutual separation. It would be a lot easier and faster to dissolve the marriage through no-fault procedures. Besides, it could also save you a lot of money in the process.