Quick Answer
Virginia recognizes five grounds for divorce: (1) no-fault separation for one year (or six months without minor children plus a signed separation agreement); and four fault grounds — (2) adultery, (3) cruelty, (4) willful desertion or abandonment, and (5) conviction of a felony with imprisonment of more than one year. Most Virginia divorces proceed on no-fault grounds.
Virginia is one of the relatively small number of states that still recognize fault-based grounds for divorce. Whether to file on fault grounds or no-fault grounds is one of the first strategic decisions in any divorce. The choice affects timing, leverage, cost, and in some cases the substantive outcome on spousal support and asset division.
No-Fault Divorce in Virginia
No-fault is the most common path to divorce in Virginia. It requires that the spouses live separate and apart, without interruption and without cohabitation, for a statutory period:
- One year if the parties have minor children of the marriage;
- Six months if there are no minor children and the parties have signed a written separation agreement.
The separation must be continuous. Brief reconciliation attempts can restart the clock. At least one spouse must intend the separation to be permanent at the start; this intent can be established by conduct, statements, or a signed separation agreement.
What Counts as “Separate and Apart”?
Living separate and apart most often means physical separation in different residences. Virginia case law also recognizes “separation under the same roof” in narrow circumstances when the parties truly stop functioning as spouses — separate bedrooms, separate finances, separate meals, separate social activities, no marital intimacy. Same-roof separation is heavily fact-specific and often contested at trial.
Fault Grounds for Divorce in Virginia
1. Adultery
Adultery is a fault ground if one spouse has engaged in voluntary sexual intercourse with someone other than the other spouse during the marriage. Virginia requires “clear and convincing evidence” — a higher standard than the “preponderance” standard that applies to most civil claims. Direct evidence is rarely available; cases are typically proven through circumstantial evidence (opportunity, inclination, third-party admissions).
Two doctrines defeat an adultery claim:
- Condonation — if the innocent spouse, after learning of the adultery, resumed marital relations with knowledge of the conduct, the claim is generally barred;
- Recrimination — if the spouse asserting adultery also committed adultery, the claim is generally barred.
Proven adultery has a significant statutory consequence: under Virginia Code § 20-107.1(B), a court generally cannot award spousal support to a spouse against whom adultery has been proven, unless denying support would constitute a “manifest injustice.”
2. Cruelty and Reasonable Apprehension of Bodily Hurt
Cruelty requires conduct serious enough to render continued cohabitation unsafe or unreasonable. Single incidents rarely qualify; typically the court is looking for a pattern. The conduct can be physical or, in some cases, psychological cruelty that affects health and welfare.
A divorce on cruelty grounds cannot be granted until one year after the date of the most recent act of cruelty unless desertion is also pleaded. In practice, most clients in serious cruelty situations also obtain a protective order through the Juvenile and Domestic Relations District Court while the divorce is pending.
3. Willful Desertion or Abandonment
Desertion requires (a) actual breaking off of cohabitation and (b) intent to remain apart, without justification or the consent of the other spouse. As with cruelty, a divorce on desertion grounds typically requires one year of separation from the date of desertion.
“Constructive desertion” is recognized in Virginia: if one spouse’s conduct — cruelty, refusal of marital intimacy without justification, or similar — forces the other spouse to leave, the leaving spouse may have a desertion claim against the spouse who caused the departure.
4. Felony Conviction with Imprisonment of More Than One Year
Conviction of a felony with imprisonment of more than one year, where cohabitation has not been resumed after knowledge of the conviction, is a ground for divorce. This ground is rare in practice but available.
Why Choose Fault Grounds Over No-Fault?
The honest answer in most cases is: don’t. Fault cases are more expensive, take longer, and require putting embarrassing facts in front of a judge. The two reasons clients sometimes pursue fault grounds:
- To file immediately rather than wait for the separation period — fault grounds do not require waiting one year before filing, though many require one year before a final decree;
- To affect spousal support or equitable distribution — the circumstances contributing to dissolution, including fault, is one of the equitable-distribution factors under Virginia Code § 20-107.3(E)(5).
In practice, the spousal-support bar from proven adultery is the most consequential fault-related outcome. The equitable-distribution factor rarely shifts the asset split substantially unless the conduct is extreme (marital waste, dissipation of assets for an affair, intentional destruction of marital property).
Filing on Both Fault and No-Fault Grounds
Virginia permits a divorce complaint to plead multiple grounds in the alternative. A common strategic approach is to plead fault and no-fault grounds together, then dismiss the fault grounds at the end of the case in exchange for a favorable settlement on support or property. This preserves leverage without committing the case to a fault trial.
How Do Fault Grounds Affect Custody?
Marital fault is generally not a custody factor unless the conduct directly affected the children. Adultery alone does not affect custody. Conduct that affected the children — substance abuse, domestic violence, exposing the children to inappropriate relationships, marital waste that affected the family’s standard of living — can be relevant under the custody best-interests analysis. See Child Custody.
Frequently Asked Questions
Is Virginia a no-fault state?
Virginia recognizes both fault and no-fault grounds. Most divorces are filed on no-fault grounds after the statutory separation period.
Can I file for divorce in Virginia before the separation period is up?
You can file on fault grounds without waiting for the no-fault separation period. However, many fault grounds (cruelty, desertion) still require a one-year wait before a final decree can be entered. Filing early on fault grounds primarily affects timing of pendente lite relief, not the entry of the final decree.
Does adultery affect property division in Virginia?
Adultery is one of the factors the court considers under the equitable-distribution statute, but it rarely shifts the asset split substantially absent dissipation or waste of marital assets. The most consequential effect of proven adultery is the bar on spousal support to the offending spouse.
What is “separation under the same roof”?
A doctrine that allows the separation period to run while both spouses still live in the marital home, if they truly stop functioning as spouses. Same-roof separation requires careful documentation and is often contested. We typically recommend physical separation when possible.
Can a Virginia divorce be granted on irreconcilable differences?
Virginia does not use the “irreconcilable differences” language. The functional equivalent is no-fault separation for the statutory period.
Speak with a Northern Virginia Divorce Attorney
The choice of grounds is one of the first strategic decisions in any divorce, and the right answer depends on facts that can only be assessed in confidence. Call 703-385-8722 or schedule a consultation. See also our Divorce and Contested Divorce practice pages.