Whose Fault Is It Anyways?

Thinking about getting a divorce? The first step is to figure out the type of divorce you may wish to pursue. This article will explain the five different grounds for divorce.


Brittany Johnson

10/4/20213 min read

In Virginia, there are five grounds for divorce. Four of these grounds are considered "fault" grounds, and the last is regarded as the "no-fault" ground for divorce.

No-Fault Divorce

A no-fault divorce means that you and your spouse have been living separate and apart continuously for a certain period of time. This type of divorce is usually more straightforward than a fault divorce because you and your spouse agree that the divorce is due to irreconcilable differences that are neither person's fault. Sometimes this type of divorce is called an "uncontested divorce."

Requirements For Filing a No-Fault, Uncontested Divorce

To file a no-fault, uncontested divorce in Virginia, you must meet the following requirements:

1. You or your spouse have lived in Virginia for at least six (6) months;

2. You and your spouse have been living separate and apart continuously for at least one (1) year if you have minor children together (or six (6) months if you don't have minor children);

3. You and your spouse have signed an agreement settling all property, custody, and support issues.

B. S. Johnson Law, PLLC currently handles no-fault, uncontested divorces for a flat fee of $499 plus court fees (includes a free separation agreement).

Fault Divorce

On the other hand, a fault divorce is more difficult to get because you have to prove that the divorce is your spouse’s fault by establishing one or more of the fault grounds (adultery is the most popular), and your spouse will usually dispute your claims. When you or your spouse deny any aspect of the divorce, it becomes a contested divorce.

These are the recognized grounds for divorce in Virginia:

A. Adultery, Sodomy, and Buggery. Adultery is defined as sexual intercourse with someone, not your spouse (Did you know that Adultery is a Class 4 Misdemeanor in Virginia)! Sodomy is oral or anal sex, and Buggery is sex with animals. There is no waiting period to file for divorce if your spouse is guilty of adultery, sodomy, or buggery.

B. Felony Conviction. When one spouse has been convicted of a felony and sentenced to more than one (1) year in prison.

C. Cruelty. When one spouse is guilty of putting the other in reasonable apprehension of bodily hurt, the innocent spouse may obtain a divorce after one (1) year following the date of the act.

D. Abandonment and Willful Desertion. When one spouse is guilty of abandoning the other (this includes moving out of the marital home), the innocent spouse may get a divorce after one (1) year.

Defenses to Fault Grounds

If you believe you have a strong case for your fault divorce case or if your spouse is excusing you of immoral conduct, you should be aware of the defenses to the fault grounds:

A. Recrimination. One spouse can raise this defense when both are guilty of immoral conduct. The prime example is when both spouses are guilty of adultery.

B. Condonation. Condonation means that the innocent spouse forgave the guilty and has resumed cohabitation and sexual relations with the guilty spouse. Yes, having sex with your guilty spouse is a form of forgiveness.

C. Connivance. The guilty spouse can raise this defense when the "innocent" spouse consented and encouraged the lousy conduct. For example, if you encourage your spouse to have an extramarital affair, you cannot file for divorce based on adultery.

Frequently Asked Questions

1. How long will a no-fault, uncontested divorce take?

The entire divorce process can take anywhere from a few weeks to months, depending on the pace of the client and the client’s spouse. If you and your spouse agree on all aspects of the divorce and complete all necessary paperwork correctly and promptly, the divorce process will be completed the fastest.

2. I live in Virginia, but my spouse lives out of state. Can I still get an uncontested divorce? What if I don’t know where my spouse is located?

Yes, it is possible to get a divorce if your spouse lives out-of-state as long as they are willing to sign the necessary paperwork. If your spouse doesn’t complete the paperwork or your spouse’s location is unknown, you may still get a divorce if there aren’t any other issues to be decided by the court.

3. My spouse is incarcerated; can I still get an uncontested divorce?

In many cases, it is possible to get a divorce if your spouse is incarcerated. However, the steps to get a divorce aren’t as straightforward and may get a little tricky if you’re handling the process alone. It will save you a lot of time, money, and frustration if you hire an experienced divorce attorney. We are familiar with the divorce process when one spouse is incarcerated and could help.