The Role of “Fault” in Divorce Decisions

Many, if not most, people involved in a hotly contested marital separation or divorce case are very focused on the bad behavior of their spouse during the marriage. Whether the other spouse committed adulterty, was cruel or abusive, or simply “dropped out” of the marriage for no good reason, many divorce litigants will direct a great deal of their energy (and their divorce attorney’s time) to the fault or “bad behavior” of the other spouse.

But what kinds of behaviors are relevant or important for a Court to consider in a divorce case? What effect does proving that your spouse has committed bad acts or been a bad husband and wife have to do with the court’s decision-making in divorce? Does it have any effect at all? Is the Court supposed to consider this information, and if so, what is the Court supposed to do with it?

First of all, one needs to understand the kinds of decisions the Court is required to make in a divorce case. The Court is first charged with the job of determining whether there is a legal “ground of divorce.” If there is not, then the Court’s job is finished. If there are one or more legal grounds of divorce proven, the Court must then classify the litigants’ property as “separate,” “marital” or “hybrid,” i.e., part separate and part marital. Then the Court must divide the “marital” portion of the property after considering a number of diffferent factors. Then the Court must consider the issue of spousal support.

Only certain kinds of behaviors are considered a ground for divorce under Virginia law. These are (1) adultery, sodomy, or buggery; (2) conviction of a felony resulting in a prison term of more than one year; (3) cruelty; (4) desertion; (5) reasonable apprehension of bodily harm; or (6) intentional separation for the required period (either one year or six months, depending on the circumstances). If a person’s behavior during the marriage rises to the level of one of the above “fault based grounds, i.e., items (1) through (5), then it could be, upon proper proof, a reason for the Court to grant a divorce. For all but items (1) and (2), the parties would need to be separated for the required period before the Court could grant a final divorce on these grounds.

So the “fault” of a spouse during the marriage is can only be a “ground of divorce” if it falls into certain categories. “Irreconcilable differences” is not a ground of divorce under Virginia law.

If a ground of divorce is established, it is one of the factors a Virginia Court is required to consider when determining how to divide the marital property. But it is not the only factor, and proving that your spouse committed a recognized fault does not necessarily mean that the Court must give you more of the marital property. The Court is also required to consider a number of other factors in divorce under Virginia law, including but not limited to, the duration of the marriage, the contributions of each spouse to the well being of the family (monetary and non-monetary), the contributions of each spouse to the care acquisition, and maintenance of the marital property, the nature of the property, how and when it was acquired, and so forth. The Court is also required to consider all factors that contributed to the dissolution of the marriage, not just the specified fault behavior.

But Virginia divorce law does not instruct the Court exactly what to do with this information if it is proven, and whether the Court relies on the proof of some fault ground in apportioning the marital property between the spouses is a decision that is committed to the discretion of the Judge deciding the divorce case.

Fault in a marriage can also be relevant to the issue of spousal support in Virginia divorces. Virginia divorce law provides that adultery, if proven, will presumptively bar a litigant from receiving spousal support. This presumption can be overcome by proving that the denial of spousal support would be “manifestly unjust,” but in the right circumstances, a proven ground of adultery in a Virginia divorce can be a powerful weapon in a litigated divorce involving spousal support.

All Virginia divorce cases are very fact specific and fact sesitive, so it is important to consult closely with your divorce attorney to get your lawyer’s opinion on the effect that such proof might or might not have on your case. Virginia divorce law commits a tremendous amount of “discretion” to the trial judge deciding the divorce. Your attorney can properly advise you on the importance that this kind of evidence may or may not have in your particular divorce matter.

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