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The Kind of Divorce You Are Facing
When the law lets you file right away.
Virginia recognizes four fault grounds that let you file for divorce without waiting through a separation period: adultery, felony conviction, cruelty, and desertion. We weigh the strategic pros and cons before we ever file on fault grounds.
In Plain English
A fault-based divorce in Virginia is one filed on a statutory ground of misconduct: adultery, felony conviction, cruelty, or desertion. Fault grounds let you file immediately, without waiting through the standard one-year separation period. Proving fault also gives the court additional discretion in dividing property and awarding support.
The Four Fault Grounds
Virginia recognizes four specific grounds.
Each ground has its own elements, its own evidentiary requirements, and in some cases its own waiting period. The grounds are listed at Va. Code § 20-91(A)(1) through (6).
Ground 01
Adultery, sodomy, or buggery.
No waiting period to file
Adultery is sexual relations between a married person and someone other than their spouse. The standard of proof is "clear and convincing," which is higher than ordinary civil cases. Circumstantial evidence can satisfy the standard, but the evidence must be strong and the timing must precede the final separation.
Sodomy and buggery are separate but related statutory grounds for sexual misconduct.
Va. Code § 20-91(A)(1)
Ground 02
Felony conviction after marriage.
No waiting period to file
A felony conviction during the marriage that results in confinement for more than one year, where the spouses have not cohabited after knowledge of the confinement, is a fault ground. The conviction must come from a competent court and the sentence must actually exceed one year.
Va. Code § 20-91(A)(3)
Ground 03
Cruelty, apprehension of bodily hurt.
One year waiting period
Cruelty in Virginia means conduct that creates reasonable apprehension of bodily harm, typically physical violence or a pattern of behavior that endangers the spouse. After the act of cruelty, the parties must live apart for one year before a final divorce decree on this ground can be entered, although a divorce from bed and board may be granted earlier.
Cruelty cases often start as protective order matters in J&DR Court and develop into divorce cases.
Va. Code § 20-91(A)(6)
Ground 04
Willful desertion or abandonment.
One year waiting period
Desertion is the deliberate breaking off of cohabitation by one spouse, against the other's will, without justification. After one year of desertion, the abandoned spouse can seek a final divorce on this ground. Constructive desertion (where one spouse's conduct effectively forces the other to leave) is also recognized.
Va. Code § 20-91(A)(6)
Strategic Pros and Cons
When fault grounds actually help.
Filing on fault grounds is a strategic decision, not an emotional one. Here is the honest case for and against in most situations.
Reasons to file on fault grounds
- Skip the separation period. Adultery and felony grounds let you file immediately, with no waiting.
- Equitable distribution factor. Misconduct is one factor a court can consider when dividing marital property under § 20-107.3.
- Spousal support analysis. Fault by the receiving spouse can bar an award of permanent spousal support in some cases. § 20-107.1.
- Pendente lite leverage. A strong fault claim early in the case can influence temporary support and possession orders.
- Closure and documentation. Some clients want the record to reflect what happened.
Reasons to file on no-fault instead
- Higher legal cost. Proving fault requires investigators, witnesses, document subpoenas, and trial time.
- Public record. Fault cases create a more detailed public record than no-fault cases.
- Children may eventually read it. Court files outlive the immediate fight.
- Higher evidentiary burden. Adultery requires clear and convincing evidence, not just suspicion.
- Limited financial upside in most cases. Equitable distribution under Virginia law is fairly fact-driven regardless of fault, and the additional financial benefit may not justify the additional cost.
How We Approach the Decision
Three questions before we file on fault.
Can we prove it? Fault grounds require evidence that meets the legal standard, not just the client's certainty. Adultery in particular requires clear and convincing evidence, which is a real bar. If the evidence is thin, filing on fault risks an embarrassing failure at trial without any benefit. We talk through the evidence honestly before recommending fault grounds.
What does it gain financially? The financial benefit of proving fault in equitable distribution and support is real but often smaller than clients expect. We model the case both ways (fault and no-fault) and look at the realistic dollar difference. Sometimes it justifies the cost; often it does not.
What does the family lose? Fault litigation is harder on everyone, especially children old enough to understand. The decision to litigate fault is often as much about what the family can absorb as about what the law allows.
For some cases (recent infidelity, demonstrable financial misconduct, dangerous behavior) fault is the right call. For most cases, the cleaner path is filing no-fault and using the same evidence as factors in equitable distribution and support without making fault the centerpiece. The decision is made case by case, not by reflex.
Related Pages in This Group
Other kinds of divorce you may be facing.
Fault is one of four ways your case can be classified. Most fault-based cases are also contested, but the inverse is not true: a contested case can be entirely no-fault.
Spoke 01
Contested Divorce
Almost every fault case is also contested. Here is what contested means procedurally.
Read more →Spoke 02
Uncontested Divorce
When both spouses agree on every issue and have a signed agreement, the case stays simple.
Read more →Spoke 03
No-Fault Divorce
The most common path. Misconduct can still be raised as a factor, even in a no-fault filing.
Read more →Related Practice Areas
Where fault actually shows up.
Fault grounds affect more than the divorce itself. They feed into property division and support, and sometimes into custody.
Common Questions
Plain answers about fault-based divorce.
Questions we hear most often from clients considering whether to file on fault grounds.
Have a specific question?
Call 571.260.0999 or send us a message.
Do I need to prove adultery to mention it in my divorce?
No. Even in a no-fault filing, adultery and other misconduct can be raised as factors in the equitable distribution analysis under Va. Code § 20-107.3 and the spousal support analysis under § 20-107.1. The standard of proof for using fault as a factor is generally lower than the clear-and-convincing standard required to obtain the divorce itself on fault grounds. This is one reason many lawyers file no-fault but still introduce evidence of misconduct where relevant to the financial outcome.
Will adultery affect property division in Virginia?
Adultery can affect property division, but only as one factor among many under Va. Code § 20-107.3. Virginia is an equitable distribution state, which means the court divides marital property fairly based on the statutory factors. Adultery alone rarely tips the scale dramatically; the financial impact tends to be modest unless the conduct also involved dissipation of marital assets (for example, spending marital funds on the affair).
Does adultery prevent the unfaithful spouse from getting spousal support?
In some cases, yes. Under Va. Code § 20-107.1, adultery by the spouse seeking support can bar an award of permanent spousal support, unless the court finds it would constitute manifest injustice based on the parties' respective economic circumstances and the duration of the marriage. The bar is significant but not absolute. Statutory basis: Va. Code § 20-107.1(B).
What is the difference between a divorce from bed and board and a divorce from the bond of matrimony?
A divorce from bed and board is a limited divorce that separates the parties legally but does not end the marriage. It is available on cruelty and desertion grounds and can be granted without the full one-year waiting period. A divorce from the bond of matrimony is a complete divorce that ends the marriage and allows remarriage. In most cases, a divorce from bed and board can later be merged into a full divorce.
Can I file on fault grounds without going to trial?
Yes. Even fault-based cases settle most of the time. The Complaint can plead fault grounds, but the parties can resolve the case by agreement before trial. Sometimes the fault claim is dropped in negotiation; sometimes it stays in the pleadings but the parties settle on financial terms that account for the misconduct. Filing on fault does not commit you to a trial.
How long does a fault-based divorce take in Northern Virginia?
Fault-based divorces typically run on a timeline similar to other contested cases: nine to eighteen months from filing to Final Order, sometimes longer when the fault claim requires extensive discovery or experts. Adultery and felony grounds allow immediate filing, but the case itself still moves at the pace of the court's calendar and the complexity of the issues.
When You Are Ready
Before you file on fault, let us look at the case.
The first call is a conversation, not a commitment. We will walk you through whether fault grounds actually help your situation, and what filing them costs.