Are there benefits to an at-Fault Divorce in Virginia?

Deciding to file for a divorce is difficult enough already, but you’ll soon find you have a second decision to make: whether you opt for a no-fault or an at-fault divorce. Both options are possible in Virginia, depending on your circumstances.

Whether your ex-spouse committed adultery or something even worse, there are pros and cons to filing a divorce based on fault. Here’s an outline of what those are to help you make the right decision.

File for Divorce Immediately

Getting divorced isn’t as simple as clicking a button. It’s a time-consuming process — there’s a waiting period before you can even file for divorce, you’ll need lots of investigation and documentation, and submitting your papers may be complicated when motions are added. Only after all this can you proceed to your hearing or final agreement.

In Virginia, you must be separated from your spouse for at least one year (if you have minor children or don’t have a signed separation agreement) before filing your papers, but you can skip the statutory waiting period if you opt for an at-fault divorce. However, the overall process may take much longer since guilt must be proven and financial issues investigated and resolved, especially if experts are desired or needed.

So, filing early may not necessarily help you to move on any faster. Plus, you can always file for child support and temporary spousal support while waiting for the separation period to expire.

Increase the Chances of Better Terms

When you file for a fault-based divorce, you may increase your chances of getting the terms you want and need, including higher spousal support and favorable property division. In fact, Virginia law states that the court, in determining whether to award support and maintenance for a spouse, shall consider the circumstances and factors which contributed to the dissolution of the marriage. Adultery or other fault ground is just one factor taken into consideration here.

Yet better terms are no guarantee — the court will also consider factors like the duration of the marriage and whether the person filing is also guilty of the same or another fault ground.

A Sense of Justice

If you’ve suffered at the hands of a partner who consistently denied their bad behavior to you and those around them, you might get the satisfaction of proving finally proving that you were right.

Since the process involves showing evidence of wrongdoing, it offers a way of exposing your partner. However, beware of filing for divorce purely based on spite — don’t underestimate the mental toll the process can take on you, which may outweigh the satisfaction.

You will have to ask yourself whether the process is worth the additional time, stress, and expense.

Agreement Isn’t a Requirement

While an agreement isn’t a requirement to filing for a contested divorce, agreements on the ultimate outcome can often be negotiated. This results in much less time, stress, and expense since the parties can focus on where they’d like to end up and not what happened in the past.

Consider Mediation

Due to the emotional difficulty of filing for an at-fault divorce,  you might want to consider mediation. This gives you greater control and flexibility while guaranteeing confidentiality for you and your spouse, therefore saving everyone time, stress, and money.

If you’re interested in learning more, Donita King is an experienced lawyer-mediator who can assist you with divorce mediation. To find out more about how she can help you, contact her law offices today.

Donita King

Ms. King is a member of the Virginia, Pennsylvania, and D.C. State Bars. She also serves as a University of Richmond School of Law Adjunct Professor of Mediation. She previously served on the Virginia Bar Association Joint ADR Council (2015 Chair), and served for several years on the Governor of Virginia’s Interagency Dispute Resolution Council. Ms. King currently serves as a board member of the Virginia State Bar Disciplinary Board by appointment of the Virginia Supreme Court and has been active with the Hispanic Chamber of Commerce, Hispanic Women in Business as well. Se habla espanol.

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