What Constitutes Fault and How Does That Impact a Divorce in Virginia?
Virginia has several grounds for fault, including abandonment, adultery, and felony conviction and confinement for more than one year. The impact of a fault ground on a divorce depends on which fault ground and where the couple is in their separation. Couples typically have to wait for one year to lapse (or six months if there are no minor children and there is a signed separation agreement in place) before they can file for divorce. Fault grounds allow the party alleging fault to begin the process without having to wait the separation period. There’s no waiting period at all for an absolute divorce based on adultery or on a felony. Adultery, if the alleging party is able to prove it, also blocks the guilty party from receiving spousal support. For the fault grounds of abandonment and cruelty, the alleging party can file the divorce complaint to begin the process right away, and get a divorce from bed and board (basically a legal separation). The divorce from bed and board can be merged into an absolute divorce at the end of the requisite separation period.
If you are able to prove fault in a divorce, that fault ground can also be considered in equitable distribution. Often, judges will consider fault when they’re deciding equitable distribution and sometimes the distribution is different than it would have been if there were no fault grounds.
There may be negative impacts of filing for a divorce based on a fault ground, however, because doing so requires a higher standard of proof than filing based on a year of separation. Trying to prove that there has been fault is a heavy burden, it’s more expensive, and it also is most likely to result in hostility between the parties in the end. Generally, the most amicable divorces are not based on fault grounds. This is certainly something to consider if there are children involved because it can have an effect on the co-parenting relationship long after the divorce is over.
Is There Any Benefit to Being the Person to File for a Divorce Before Your Spouse in Virginia?
This is one of those questions that requires the classic attorney answer: it depends. In general, it doesn’t make a difference to the court, meaning they’re not going to favor one party over the other just because they filed first. However, if the case does end up going to trial, whoever filed first has the advantage of getting to speak first and then speak last. Filing first also gives that party the advantage of setting the pace and choosing the venue. Being the person who gets the ball rolling can sometimes have a positive psychological effect as well.
When Couples Decide They Will Be Proceeding With the Divorce in Virginia, What Are the Possible Options to Pursue?
There are two main types of divorce in Virginia; contested and uncontested. The easiest, least expensive, less painful way is uncontested. I often have clients who come into my office and tell me that they’ve already talked to their spouse, they’re both on the same page, and they just need to figure out what the next steps are so they can move on. This is the easiest way to handle a divorce. I give them a questionnaire to fill out with the terms that they’ve decided on for the divorce, we put it into a separation agreement, and then they’re good to go. They only have to wait six months to file for the divorce if there are no minor children at that point, or one year if they do have minor children. The separation agreement breaks down all of the terms of the divorce, so the parties not living in limbo while waiting to be able to file for the divorce. At the end of the waiting period, we file the divorce paperwork with the separation agreement. Uncontested divorces can be accomplished through the mail, with no need for a trial, witnesses or any other headache.
If you’re not really sure whether you agree on all of the terms but you’re still in a generally amicable relationship, that’s when I recommend mediation. I am a mediator myself, so I love mediation and think it’s a great tool that should be utilized whenever possible in divorces. With mediation, a neutral third party, the mediator, helps to facilitate the conversation between the two parties to get them to discuss all of the terms that need to be decided in the divorce. The mediator then can either draft a separation agreement for the parties, or the parties can then take the terms they agreed upon to an attorney to draft the separation agreement for them.
The other type of divorce is much more complicated and will almost always take longer. Contested divorces occur when parties don’t agree on the terms of their divorce and fight over who will get what. The parties may allege fault grounds, and the final terms will need to be decided in a trial before a judge. The added requirements and the necessity of presenting evidence and calling witnesses can make the divorce drag on for months, sometimes even years. This means that contested divorces are also more expensive. While it’s best to avoid a contested divorce, this type is inevitable in some situations.
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