At-Fault Divorce in Virginia: Grounds, Proof, and Defenses

An at-fault divorce in Virginia lets you end a marriage by proving your spouse committed specific misconduct: adultery (including sodomy or buggery outside the marriage), a felony conviction with more than a year of imprisonment, cruelty or a reasonable fear of bodily harm, or willful desertion. Fault grounds carry stricter evidence rules than a no-fault separation filing, and the choice matters because fault can bar spousal support, influence how property is divided, and, with adultery, skip the one-year waiting period entirely. It also opens the door to defenses that can sink your case.

The Four Fault Grounds

Adultery, sodomy, or buggery. Sexual misconduct outside the marriage is the most commonly cited ground. Virginia requires clear and convincing evidence, a higher bar than the usual civil standard, and you generally have to show both opportunity and inclination.¹

Felony conviction. Your spouse must have been convicted of a felony after the marriage, sentenced to more than one year of confinement, and actually imprisoned. You also cannot have resumed cohabitation after learning about the confinement. A later pardon does not restore marital rights under this ground.¹

Cruelty or reasonable fear of bodily harm. Physical violence qualifies. So does a sustained pattern of behavior severe enough to endanger your health or make cohabitation genuinely unsafe. Persistent verbal abuse, humiliation, and threats have been recognized when they reach that level.

Desertion. Willful desertion means your spouse left without justification and intending to end the marriage. Constructive desertion works the other way: if your spouse’s conduct forced you to leave, the spouse who stayed becomes the deserter. The spouse who left carries the burden of proving the other’s behavior justified the departure.¹

Deadlines and Waiting Periods

Adultery has an absolute five-year cutoff. You cannot file on adultery if the affair happened more than five years before you file, no matter how strong your evidence.² The same statute also bars an adultery claim if you voluntarily lived with your spouse after finding out.

Adultery is also the fastest fault ground, because it is the only one with no mandatory waiting period. Meet the evidence standard, clear the five-year bar, and the court can grant a final decree without a separation period.

Cruelty, apprehension of bodily harm, and desertion all require a one-year separation before the court will grant a final divorce from the bond of matrimony.¹ The year runs from the date of the underlying act, and resumed cohabitation resets the clock.

Divorce From Bed and Board

If you need court intervention before the one-year period runs, Virginia offers a divorce from bed and board on grounds of cruelty, reasonable fear of bodily harm, or willful desertion. It functions more like a legal separation: the court can divide property and set custody, but you remain legally married and cannot remarry.³

Once a year has passed since the triggering event (or six months if you have a separation agreement and no minor children), you can ask the court to merge the bed-and-board decree into a full divorce.⁴

What Proof Takes

Virginia will not grant a fault-based divorce on the spouses’ testimony alone. The law requires corroboration: at least one independent witness or piece of evidence supporting your allegations.⁵ That applies to every fault ground.

Your corroborating witness needs firsthand knowledge of the relevant facts. A neighbor who saw a violent incident, a family member who saw injuries, or a medical provider who documented them can support a cruelty claim. Someone who observed the departure and can speak to the circumstances can support desertion. Adultery is harder because of the clear-and-convincing standard; private investigators, phone records, hotel receipts, and witnesses to opportunity and inclination are common.

Even when the defendant does not contest the case, the judge independently reviews the evidence. Getting your spouse to agree to the allegations does not eliminate the corroboration requirement.

Defenses That Can Sink Your Case

Filing on fault invites a fight, and Virginia gives the responding spouse several defenses that can defeat the claim entirely.

Condonation. If you knew about the misconduct and forgave it, your claim dies. Forgiveness does not have to be verbal. Resuming cohabitation or a sexual relationship after learning what happened can be enough. The defense applies to the specific instance you forgave; a fresh act of the same conduct reopens the ground.

Connivance. If you encouraged, arranged, or consented to the misconduct, the court will reject the claim. For adultery, the statute expressly bars a divorce where the affair was procured or connived at by the complaining spouse.²

Recrimination. If you are guilty of the same type of misconduct you are alleging, neither of you is the innocent party entitled to a fault-based divorce. Mutual adultery is the classic example, and the practical result is that both parties end up on a no-fault track.

Any one of these can waste months of contested litigation. Fault cases make the most sense when the evidence is strong and the financial stakes justify the effort.

How Fault Affects Spousal Support

This is where the money moves. If your spouse proves adultery against you, Virginia law creates a near-total bar on your ability to receive permanent spousal support.⁶

There is a narrow exception: the court can still award support if denying it would be a “manifest injustice,” established by clear and convincing evidence, weighing the relative fault of each spouse during the marriage against the financial circumstances of both.⁶ Winning that exception is hard. Courts reserve it for cases where the economic gap is extreme enough that cutting off support would be disproportionate to the fault.

Beyond adultery’s outright bar, fault is one of the statutory factors in every support determination. The statute directs courts to consider “the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery and any other ground for divorce.” A spouse whose cruelty or desertion caused the breakup can see a reduced award even without the flat prohibition that applies to adultery.

How Fault Affects Property Division

Virginia divides marital property by equitable distribution, and fault is one of the factors the court weighs. The statute lists adultery, felony conviction, cruelty, and desertion among the circumstances that contributed to the dissolution.⁷

Fault is only one factor among many. Courts also weigh the length of the marriage, each spouse’s financial and nonfinancial contributions, the ages and health of the parties, and tax consequences. A judge is unlikely to hand one spouse 80% of the estate solely because the other cheated. Fault can tip a close case, but it rarely dominates the analysis the way it can with support.

Fault and Child Custody

Custody in Virginia runs on the best interests of the child, not on who was at fault in the divorce. The factors focus on each parent’s relationship with the child, the child’s needs, and each parent’s ability to provide care and support the child’s relationship with the other parent.⁸

Fault matters here only when the conduct touches the children directly. Any history of family abuse, sexual abuse, child abuse, or acts of violence is a best-interests factor. An affair the children never knew about is unlikely to change custody. Physical violence in the home, substance abuse that impairs parenting, or a felony that removes a parent from the household will all matter, but as safety issues, not as divorce grounds.

Filing the Complaint

At least one spouse must have been an actual, good-faith resident of Virginia for at least six months before filing.⁹ You file the Complaint for Divorce with the Clerk of the Circuit Court in the city or county where at least one spouse lives. Include the full legal names and addresses of both parties, the date and location of the marriage, and specific factual allegations supporting your fault ground. Vague claims will not survive a challenge, so document precise dates and places.

Filing fees vary by locality; call the local circuit court clerk for the current amount.¹⁰ The court issues a summons that must be formally delivered to your spouse. The sheriff’s office will serve papers for a statutory fee of $12,¹¹ or you can hire a private process server. Your spouse typically has 21 days from service to file a response. A cooperating spouse can sign a notarized waiver of service instead.

After the response deadline, the case moves toward hearing. Contested fault cases involve discovery, depositions, and potentially a full trial. Uncontested cases still require a hearing with corroborating evidence before a judge will sign a final decree.

1
Virginia Code Commission. Virginia Code 20-91 – Grounds for Divorce From Bond of Matrimony; Contents of Decree
2
Virginia Code Commission. Virginia Code 20-94 – When Divorces for Adultery Not Granted
3
Virginia Code Commission. Virginia Code 20-95 – Grounds for Divorces From Bed and Board
4
Virginia Code Commission. Virginia Code 20-121 – Merger of Decree for Divorce From Bed and Board
5
Virginia Code Commission. Virginia Code 20-99 – How Such Suits Instituted and Conducted; Costs
6
Virginia Code Commission. Virginia Code 20-107.1 – Court May Decree as to Maintenance and Support of Spouses
7
Virginia Code Commission. Virginia Code 20-107.3 – Court May Decree as to Property and Debts of the Parties
8
Child Welfare Information Gateway. Determining the Best Interests of the Child – Virginia
9
Virginia Code Commission. Virginia Code 20-97 – Domicile and Residential Requirements for Suits for Annulment, Affirmance, or Divorce
10
Virginia Judicial System Court Self-Help. Filing Fees and Waivers
11
Virginia Code Commission. Virginia Code 17.1-272 – Process and Service Fees Generally