Virginia law requires anyone who wants to file for divorce to provide legally acceptable grounds, specific reasons recognized by Virginia courts as valid bases for dissolving a marriage.
Virginia recognizes both fault-based grounds and no-fault grounds for divorce, each with different requirements, advantages, and potential impacts on your case.
What Are Legal Grounds for Divorce?
Legal grounds for divorce are the official reasons Virginia law accepts as valid bases for ending a marriage. When you file for divorce in Virginia, you must state specific grounds in your complaint, identifying the legal cause that justifies dissolving your marriage. Virginia Code § 20-91 lists all recognized grounds for divorce from the bond of matrimony.
These grounds fall into two categories: fault-based grounds that blame one spouse's behavior for the marriage breakdown, and no-fault grounds that don't assign blame but recognize the marriage is irretrievably broken. Your choice of grounds impacts your divorce timeline, what evidence you'll need, and potentially the outcome regarding spousal support and property division.
Why Grounds Are Important in Virginia
Unlike some states that only allow no-fault divorce, Virginia maintains both options, giving you strategic choices about how to proceed. The grounds you select affect how quickly you can obtain a divorce, whether you'll need to prove fault through evidence and witnesses, and how the court views certain financial decisions like spousal support awards.
What Is No-Fault Divorce in Virginia?
The most common Virginia divorce cause is no-fault divorce based on living separate and apart without cohabitation. Under Virginia Code § 20-91(A)(9), you can obtain a divorce if you and your spouse have lived separately for the required period, with at least one party intending the separation to be permanent.
The separation period is one year for most couples. However, if you have entered into a separation agreement and have no minor children either born to you, born to either party, and adopted by the other, or adopted by both parties, the required separation period drops to just six months.
Living separate and apart typically means maintaining separate residences. You cannot live in the same house and claim you're separated, even if you sleep in different bedrooms. The separation must be continuous, reconciling, and resuming marital relations restarts the clock.
"Without cohabitation" means you cannot engage in sexual relations during the separation period. Even a single instance of sexual intercourse can restart the separation clock, requiring you to separate for another full year or six months before filing.
The separation must also involve the intent of at least one spouse for the separation to be permanent. This distinguishes divorce-related separation from temporary separations for work, military deployment, or trial separations to work on the marriage.
What Are Fault-Based Grounds in Virginia?
Virginia law recognizes several fault-based grounds allowing you to file for divorce immediately without waiting for separation periods. Fault grounds include adultery, conviction of a felony, cruelty, or reasonable apprehension of bodily hurt, and willful desertion or abandonment.
Pursuing fault-based divorce requires proving your allegations through evidence and often witness testimony. The process is typically more contentious, expensive, and time-consuming than a no-fault divorce. However, proven fault can affect spousal support eligibility and may influence property division decisions.
When Fault-Based Divorce Makes Sense
Consider fault grounds when you need to file for divorce immediatel,y rather than waiting for separation periods, when proven adultery would bar your spouse from receiving spousal support you'd otherwise pay, when you're a financially dependent spouse needing temporary support orders quickly, or when fault significantly impacts the fairness of property division.
Consult an experienced family law attorney before alleging fault grounds to understand whether the benefits justify the additional complexity, cost, and stress of proving fault in court.
What Is Adultery as a Divorce Ground?
Adultery, voluntary sexual intercourse between a married person and someone other than their spouse, is a fault-based ground for divorce under Virginia Code § 20-91(A)(1). Adultery also includes sodomy or buggery committed outside the marriage.
Proving adultery requires "clear and convincing evidence," a higher standard than most civil cases. You typically need corroborating evidence beyond your own testimony, such as witness accounts, photographs, hotel receipts, text messages, emails, or other documentation establishing that your spouse had a sexual relationship with a specific person.
Limitations and Bars to Adultery Claims
You cannot file for divorce based on adultery if you voluntarily cohabited with your spouse after learning about the adultery. Continuing to live together and have sexual relations after discovering the affair bars you from later using adultery as grounds.
Virginia Code § 20-94 also prohibits adultery claims if the adultery occurred more than five years before filing for divorce, or if the adultery happened through your procurement or connivance, meaning you encouraged or arranged it.
Impact on Spousal Support
Adultery carries significant financial consequences in Virginia divorce cases. Under Virginia Code § 20-107.1(B), a spouse guilty of adultery is barred from receiving spousal support. This prohibition is nearly absolute, though courts can award support despite adultery if denying it would constitute "manifest injustice" based on clear and convincing evidence, considering the parties' respective degrees of fault and relative economic circumstances.
What Is Cruelty as a Divorce Ground?
Virginia Code § 20-91(A)(6) allows divorce when either party has been guilty of cruelty or caused reasonable apprehension of bodily harm to the other. You must wait one year from the date of the cruel act before the divorce can be granted to the innocent party.
Cruelty typically involves physical violence or abuse, creating fear of harm to mental or physical well-being. The cruelty must be substantial; courts don't grant divorces based on ordinary marital disputes, yelling, or simply being unpleasant. Acts of cruelty are usually cumulative, with each incident adding to overall severity, though a single shocking incident can suffice.
Reasonable Apprehension of Bodily Harm
You don't need to prove actual physical violence if you can establish reasonable apprehension of bodily harm. This means you had a genuine, reasonable fear that your spouse would cause you physical harm based on their threats, behavior, or past violence.
Courts evaluate whether a reasonable person in your circumstances would fear bodily harm. Your subjective fear alone isn't enough; the circumstances must objectively justify that fear.
Evidence Requirements for Cruelty
Proving cruelty requires documentation and often witness testimony. Medical records, police reports, photographs of injuries, witness statements from people who observed abuse, and your own detailed testimony about incidents can establish cruelty grounds.
Because cruelty is serious and affects support and custody decisions, courts scrutinize these claims carefully to distinguish genuine abuse from exaggerated complaints about normal marital conflicts.
What Is Desertion as a Divorce Ground?
Willful desertion or abandonment under Virginia Code § 20-91(A)(6) occurs when one spouse leaves the marital home without the other's consent, without justification, and with intent to end the marital relationship. Like cruelty, you must wait one year from the desertion date before divorce can be granted.
Desertion requires proof that the departing spouse intended to end the marriage permanently, that the separation was against the wishes of the spouse who remained, and that the desertion was willful, deliberate, and without good cause.
Constructive Desertion
Desertion doesn't always mean physically leaving. Constructive desertion occurs when one spouse's behavior makes continued cohabitation impossible, forcing the other spouse to leave. This might include refusing sexual relations without justification, withholding affection, or engaging in cruel behavior that drives the other spouse from the home.
The spouse claiming constructive desertion must prove they were forced to leave due to the other's intolerable conduct, not that they chose to leave voluntarily.
When Desertion Doesn't Apply
If both spouses agree to separate, neither can later claim desertion. Mutual separation by agreement isn't desertion even if only one spouse physically leaves the home. Similarly, if you leave the marital residence, you generally cannot later claim your spouse deserted you; leaving first typically bars desertion claims.
Consult a family law attorney before leaving the marital home, as departing can affect desertion claims, property rights, and even custody considerations.
What About a Felony Conviction?
Virginia Code § 20-91(A)(3) permits divorce when either party, after marriage, has been convicted of a felony, sentenced to confinement for more than one year, and actually confined following conviction. Additionally, cohabitation must not have resumed after you learned of the confinement.
This ground recognizes that a spouse's incarceration fundamentally changes the marriage relationship. The convicted spouse's pardon doesn't restore conjugal rights or prevent divorce on this ground.
Proof and Timing
You must prove your spouse's actual conviction, that the sentence exceeded one year, and that they're serving that sentence. If your spouse is convicted but receives a suspended sentence or probation instead of actual confinement, this ground doesn't apply.
You also cannot use this ground if you resumed living together as husband and wife after learning your spouse was imprisoned. Reconciliation after confinement bars using the conviction as grounds for divorce.
How Does Separation Work as a Ground?
For most couples, Virginia divorce law requires living separate and apart without cohabitation for one continuous year before filing for divorce on no-fault grounds. This year-long separation gives couples time to consider reconciliation and ensures the marriage breakdown is permanent.
The one-year period must be continuous and uninterrupted. Reconciling and resuming cohabitation restarts the clock. The separation period is measured from the date you began living separately until you file for divorce or have your final hearing.
Six-Month Separation Option
If you meet two specific requirements, the separation period reduces to just six months. First, you and your spouse must have entered into a separation agreement—a written contract dividing property, addressing debts, and resolving other divorce-related issues. Second, you cannot have minor children, either born to both parties, born to one party and adopted by the other, or adopted by both parties.
The separation agreement must be in writing and signed by both spouses. The agreement typically addresses property division, debt allocation, spousal support if applicable, and other terms. This option recognizes that couples without children who've already resolved financial issues should be able to divorce more quickly.
Proving the Separation
Even for a no-fault divorce, you must prove the separation through corroborating evidence. This typically means testimony from a witness, someone other than you or your spouse who has personal knowledge of your separation. The witness might be a friend, family member, or neighbor who knows you've lived separately for the required period.
You'll also provide your own sworn testimony in an affidavit or deposition confirming the separation date, that you maintained separate residences, that you didn't cohabitate during the separation, and that at least one of you intended the separation to be permanent.
Can I File Without Proving Fault?
Most Virginia divorces proceed on no-fault grounds based on separation. No-fault divorce offers several advantages: you avoid the expense and stress of proving fault, you don't need to air private details about your marriage in court, the process is typically faster and less contentious, and you reduce conflict, which is especially important when minor children are involved.
No-fault divorce allows both parties to move forward without assigning blame, which can facilitate more cooperative negotiations about property division, spousal support, and custody arrangements.
Even in primarily no-fault divorces, fault can affect certain outcomes. If adultery is proven, it bars the guilty spouse from receiving spousal support. The court may consider fault grounds when determining property division under Virginia Code § 20-107.3(E), which lists "circumstances and factors that contributed to the dissolution" as a factor.
Fault can also influence custody decisions if the behavior demonstrating fault also suggests poor parenting or creates risks for children.
What Evidence Do I Need?
Virginia law requires corroboration for all divorce grounds except no-fault divorce under certain circumstances. Corroboration means independent evidence beyond just your testimony supporting your claims. You typically need at least one witness who can testify to facts supporting your grounds for divorce.
For adultery, you need clear and convincing evidence from sources other than the parties. For cruelty, witnesses who observed abuse or its effects can corroborate your claims. For separation, you need a witness confirming you lived separately for the required period.
Types of Acceptable Evidence
Evidence supporting Virginia divorce causes varies by the specific ground alleged. Documentary evidence includes photographs, text messages, emails, social media posts, hotel receipts, credit card statements, police reports, medical records, and financial documents.
Witness testimony comes from friends, family members, neighbors, coworkers, or anyone with personal knowledge of relevant facts. Expert testimony might include doctors, therapists, or forensic accountants, depending on the issues.
Physical evidence could include damaged property, recordings (where legally obtained), or other tangible items demonstrating fault or supporting your claims.
How Do Grounds Affect My Divorce Timeline?
One significant advantage of fault-based grounds is the ability to file for divorce immediately without waiting for separation periods. If you prove adultery, cruelty, or desertion, you can file right away, though you must still wait one year from the fault act's date for cruelty and desertion before the divorce can be granted.
This immediate filing ability matters when you need court intervention quickly for temporary support orders or protection from abuse.
Waiting Periods for No-Fault
No-fault divorce requires completing the separation period before you can even file unless you're using the six-month option. After filing, additional time passes for service of process, waiting periods for responses, and scheduling hearings.
Uncontested no-fault divorces often finalize within weeks after filing if all requirements are met. Contested divorces take much longer regardless of grounds.
How Do Grounds Affect Spousal Support?
The most significant impact of grounds on spousal support involves adultery. Virginia Code § 20-107.1(B) creates a near-absolute bar preventing adulterous spouses from receiving spousal support. This rule strongly incentivizes proving adultery when you might otherwise owe support to your spouse.
The bar applies unless the spouse seeking support proves by clear and convincing evidence that denying support would constitute manifest injustice based on respective degrees of fault and relative economic circumstances.
Other Fault Grounds and Support
While other fault grounds don't automatically bar spousal support like adultery does, Virginia Code § 20-107.1(E) requires courts to consider "circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery and any other ground for divorce" when determining spousal support.
Proven cruelty, desertion, or other fault can influence the amount and duration of spousal support awards. Courts may award more support to an innocent spouse or reduce support based on the requesting spouse's fault.
How Do Grounds Affect Property Division?
Virginia follows equitable distribution for dividing marital property. While fault doesn't automatically change property division, Virginia Code § 20-107.3(E)(5) lists "circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce" as one factor courts must consider.
Recent court decisions show judges increasingly considering fault when dividing property, particularly when fault is involved in financial misconduct like spending marital funds on affairs or deliberately wasting marital assets.
Fault affects property division most significantly when the fault involves financial abuse, dissipation of marital assets, or behavior that damaged the marital estate. Courts may award the innocent spouse a larger share of marital property to compensate for losses caused by the guilty spouse's conduct.
Should I Pursue Fault or No-Fault Divorce?
Deciding whether to allege fault grounds requires weighing multiple considerations. Ask yourself whether you have clear, provable evidence of fault grounds, whether proving fault would significantly benefit you financially through barred spousal support or favorable property division, whether you can afford the additional cost of fault-based divorce, and whether the emotional toll of proving fault is worth potential benefits.
Consider also how fault allegations might affect your relationship with your spouse and your ability to cooperate on issues like custody and property division.
Consulting a Family Law Attorney
Given the complexity of Virginia divorce causes and their impacts, consult an experienced family law attorney before deciding which grounds to pursue. An attorney can evaluate your evidence, assess whether fault claims would likely succeed, estimate the additional cost of proving fault, and advise whether potential benefits justify the additional complexity.
Moving Forward with Your Virginia Divorce
Every divorce situation is unique, and the grounds you select should align with your specific circumstances, goals, and evidence. Work with a qualified family law attorney who can guide you through Virginia's divorce process, help you gather necessary evidence, and advocate for outcomes that protect your financial interests and parental rights.