When divorcing your spouse, it is important to understand the difference between “no fault” and “fault” divorce law. A no fault divorce is not based on any particular conduct. A fault divorce is based on bad conduct. One spouse must allege that the other was at fault for the divorce, because of misconduct that led to the breakdown of the marriage. Virginia is one of the few states in the U.S. that still allows fault based divorces, so it is important to consider the following differences between each and be aware of your options.
Living Separate and Apart
Upon filing a no fault divorce, some states require that the spouses live separate and apart for a designated period of time. Specifically, in Virginia, the law requires that the spouses must live separate and apart from one another for one year without interruption. This means that the spouses cannot cohabitate as husband and wife for at least one year prior to filing paperwork for a divorce.
However, if proceeding on a fault divorce, the paperwork can be filed at any time after the alleged fault took place, but the divorce still may not be finalized until the parties have been living separate and apart for the specified period.
Finalizing the Divorce
Because those who file for a no fault divorce are not required to prove the fault on the part of the other party to be awarded a divorce, most no fault divorces are granted, provided that the spouses have shown an irretrievable breakdown of the marriage and that they have been living separate and apart for the specified period of time. There is less emphasis on the actions that led to the divorce, which allows both parties to move forward without the stress or turmoil of trying to prove the reason for the breakdown of the marriage.
The grounds for fault based divorces are adultery, prison confinement, cruelty, willful desertion or abandonment. The injured spouse must testify to the evidence to support the alleged grounds, and these grounds must be corroborated by evidence presented by an independent witness. Adultery must be proven by clear and convincing evidence, and all other grounds must be proven by a preponderance of the evidence. If fault is proven, the party not at fault may gain a larger portion of the marital property upon division of assets.
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