The role of ‘fault’ in divorce

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In a divorce, Virginia courts want to know who was responsible for the dissolution of the marriage. Finding that out can be complicated, painful, expensive and ugly. And the degree to which fault can be attributed more to one party or another can have significant impact on how the court distributes marital property and debts, and the duration and amount of spousal support.

The meaning of ‘fault’

Before further exploring the implications, we need to clarify what the law means by "fault." In one sense, fault is synonymous with the "grounds" for divorce. It is the formal basis or justification for the very filing of the divorce in the first place. There are several grounds, some quite quaint, handed down to us from the common law Virginia inherited from England, such as learning one's spouse has a "loathsome disease."

The grounds that have survived into more modern usage are adultery, cruelty, abuse, and desertion or abandonment. Less popular grounds include having one's spouse sent to prison for a felony for over a year.

There also is the "no-fault" ground of divorce based solely on the fact that the husband and wife have been separated for a prescribed amount of time––six months if there are no minor children and the parties have signed what is called a Property Settlement Agreement, 12 months otherwise.

If you "plead" fault in your "complaint for divorce" (the formal document that starts your divorce), you do not have to wait for a certain period to pass. You can file a complaint as soon as you have evidence of the fault ground.

Pleading generic fault

There is a second, broader kind of fault, less formally defined than that associated with the "ground" of the divorce. It is more generic. This is what the law refers to when it wants to know the relative responsibilities of the parties for the dissolution of the marriage. Generic fault can be raised even in a "no-fault" divorce.

For example, if a wife learns her husband has had an affair. She wants to file a complaint for divorce on the ground of adultery. But proving adultery as a "ground," as opposed to proving it was a generic factor that contributed to the demise of the marriage, is difficult.

Think of it as the difference between Adultery (with a capital “A”) and adultery. Proving Adultery as a ground, requires a higher burden proof, independent corroboration, and no condoning or implicit pardoning of the offending behavior. In other words, she has to kick him out of the house or move out herself as soon as she finds out.

Instead of trying to prove Adultery, she decides to prove adultery–bear with me; I did not write these laws. The small "a" adultery requires much less rigorous evidence than the capital "A" variety. The Virginia statutes that authorize judges to award spousal support (Va. Code 20-107.1) and divide property (Va. Code 107.3) allow her to introduce such evidence when she asks a judge to weigh the relative responsibilities of each party for the dissolution of the marriage.


Proving Adultery as a ground, requires a higher burden proof, independent corroboration, and no condoning or implicit pardoning of the offending behavior.

Evolution of spousal support and property distribution

If you've survived this theoretical thicket to this point, the next and most important question is of how fault affects spousal support and property distribution. And here the law has been evolving significantly in recent years.

How marriage used to end in Virginia

There was a time, as recently as 10 years ago, when the law's attitude was that it couldn’t divine the incredible complexities of marriage–surely the most complicated of all human relationships–enough to assign blame for a divorce in such a way as to be punitive in how it awards spousal support and property. Therefore, said the law, it is best for the courts to promote the severance of the relationship as cleanly, quickly, and permanently as possible.

Bottom line: fault did not have much impact.

Legally, the Court of Appeals in those days instructed our circuit courts, where divorce cases are filed and tried, that fault could only be considered if it had an economic impact on the marital estate. I used to tell clients this meant the cheater had to buy his girlfriend a fur and an apartment with money from the marital till. Lawyers have unusually sardonic humor.

Gradually, this definition was broadened to include non-economic damage to the marriage as well. The law started considering the fact that the bad guy may have driven the other spouse–or even the children–into psychological therapy.

It wasn't long before a party's fault in why the marriage broke down became in itself its own negative consequence. We no longer have to prove damage, for the demise of the relationship is its own evidence.

The current impact of fault in divorce

Fast forward to now: Fault is huge. Even though the relevant statutes have changed very little over the past 20 years, how the courts have interpreted these laws has swung dramatically. Many judges still believe that "fault" is usually counterbalanced by conduct from the other spouse in some form, and call it a wash. It takes two to make a marriage flourish, and two to extinguish it. Not always, of course, but often enough. Other judges will jump on evidence of fault to label one of the parties the bad buy and dish out results accordingly.

What does all this mean?

It means that, whereas in the past an attorney might disregard fault evidence as not strong enough to affect the outcome of a case, we now must assume fault will be litigated. Even if parties reconcile and write loads of heart-rending notes of forgiveness to each other, when that marriage goes south all evidence of prior infidelity––and mere suspicions of new ones––will be revived in a bonfire of litigation. And parties run the serious risk that all the "I drove you to it" love notes will be disregarded. The "I shouldn't have done it" notes will be the prevailing trial exhibits.

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Christian Curtis, LLC ALEXANDRIA VA
Christian Curtis, LLC ALEXANDRIA VA
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