Virginia is one of a few U.S. states that allows “fault” divorces — a divorce based on bad conduct. In a fault-based divorce, a spouse alleges that the other was at “fault” for the divorce, due to misconduct that led to a breakdown of the marriage. In Virginia, the grounds for fault-based divorce are as follows: adultery, a felony conviction, cruelty, and willful desertion or abandonment. Let’s take a closer look.
Cruelty typically involves violence or fear of violence. A spouse alleging cruelty will need to prove reasonable apprehension (fear) of bodily harm. This may include harm to one’s mental state in addition to one’s physical well-being. Usually acts of cruelty are cumulative, demonstrating a behavioral pattern, but a single incident vile enough to shock a court may also prove sufficient.
Desertion involves one spouse intentionally leaving the marriage against the wishes of the other spouse. This does not simply mean taking a trip or a break from the marriage. Rather, desertion requires an intention to permanently depart from the marriage. Furthermore, desertion cannot be alleged if there is mutual agreement to separate.
Desertions can be excused in cases where you’ve been told to get out, been abused, or if the actions/conduct of your spouse are causing you to suffer health problems, or if the living conditions of the marriage have otherwise been found to be intolerable.
A spouse can be charged with “constructive desertion” when his or her behavior has been abusive or cruel enough to cause the “innocent” spouse to leave the home as a means of escape. Constructive desertion can be a justification for leaving your home, but unless you’re in danger, always consult an attorney before leaving your marital home.
Proof of adultery will determine how a judge decides to best divide marital property between divorcing spouses, as well as whether or not to award alimony (spousal support).
In Virginia, the standard of proof for adultery is clear and convincing evidence. This sometimes involves hiring a detective to prove that your spouse had “inclination and opportunity” to commit adultery. Inclination may be any token gesture of affection, such a single hug or a kiss in public. Opportunity usually means spending the night with someone in a room or residence without others around.
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