An at-fault divorce in Virginia lets you end your marriage by proving your spouse committed adultery, was convicted of a felony and imprisoned, treated you with cruelty, or deserted you. Choosing a fault ground over a no-fault separation can shorten the wait for a final decree, bar your spouse from receiving spousal support, and influence how the court divides marital property. It also costs more, takes longer to litigate when contested, and exposes you to defenses that can defeat the claim entirely.
The Four Fault Grounds
Virginia Code recognizes four categories of marital misconduct that justify a divorce from the bond of matrimony.1Virginia Code Commission. Virginia Code 20-91 – Grounds for Divorce From Bond of Matrimony; Contents of Decree
Adultery, sodomy, or buggery outside the marriage. Sexual misconduct is the most common fault filing. Virginia requires clear and convincing evidence, a higher standard than the usual civil case, and you generally have to show both that your spouse had the opportunity and the inclination to commit the act.
Felony conviction. You can file if your spouse was convicted of a felony after the marriage, sentenced to more than one year of confinement, and actually imprisoned. All three elements have to line up. You also cannot have resumed living together after you knew about the confinement, and a pardon does not restore marital rights under this ground.
Cruelty or reasonable fear of bodily harm. Physical violence qualifies. So does a pattern of behavior severe enough to endanger your health. Virginia courts have recognized that persistent verbal abuse, humiliation, and threats can meet the standard when they make cohabitation genuinely unsafe.
Willful desertion or abandonment. This means your spouse left without justification and intended to end the marriage. Constructive desertion flips the roles: if your spouse’s conduct was so intolerable that you had no reasonable choice but to leave, the one who stayed is treated as the deserter. The spouse who physically left carries the burden of proving the other’s behavior justified the departure.
How Long Before You Get a Final Decree
Adultery is the only fault ground with no mandatory waiting period. If you can meet the evidentiary standard and clear the time bars, you can pursue a final divorce without sitting through a separation period. That makes adultery the fastest fault-based path.
For cruelty, reasonable fear of bodily harm, and desertion, you have to wait a full year from the date of the act before the court will grant a final divorce.1Virginia Code Commission. Virginia Code 20-91 – Grounds for Divorce From Bond of Matrimony; Contents of Decree You cannot cohabit with your spouse during that year, or the clock resets. The waiting period applies even when the evidence of fault is overwhelming.
Divorce From Bed and Board
If you need the court’s help before the one-year wait runs, Virginia offers a divorce from bed and board. It functions closer to a legal separation: the court can divide property and set custody arrangements, but you remain legally married and cannot remarry.2Virginia Code Commission. Virginia Code 20-95 – Grounds for Divorces From Bed and Board The available grounds are cruelty, reasonable fear of bodily harm, and willful desertion or abandonment, and you can file immediately after separating. Once a year has passed since the triggering event (or six months with a separation agreement and no minor children), you can ask the court to merge the decree into a full divorce.3Virginia Code Commission. Virginia Code 20-121 – Merger of Decree for Divorce From Bed and Board
Deadlines That Can Kill an Adultery Claim
Adultery carries a hard five-year cutoff. You cannot file for divorce based on an affair that happened more than five years before you file, and no amount of evidence overrides that bar.4Virginia Code Commission. Virginia Code 20-94 – When Divorces for Adultery Not Granted
The same statute blocks the claim if you voluntarily lived with your spouse after learning about the affair. If you discovered the infidelity two years ago and kept sharing a home, adultery is probably off the table as your fault ground. Cruelty and desertion have no comparable five-year window, but their one-year waiting clock runs from the date of the qualifying act.
Defenses Your Spouse Can Raise
Fault filings invite a contested fight, and Virginia gives the responding spouse several defenses that can defeat the claim entirely. Any one of them can push you back to a no-fault filing after months of litigation.
Condonation. If you knew about the misconduct and forgave it, the claim dies. Forgiveness does not have to be spoken. Resuming cohabitation or a sexual relationship after you learned about the conduct is enough for a court to find condonation. The defense covers only the forgiven instance, so new misconduct of the same type can reopen the ground.
Connivance. If you encouraged, arranged, or consented to the misconduct, the court will reject the claim. For adultery, the statute bars the divorce outright if the affair was “committed by the procurement or connivance” of the complaining spouse.4Virginia Code Commission. Virginia Code 20-94 – When Divorces for Adultery Not Granted
Recrimination. If you committed the same type of misconduct you are alleging, neither spouse qualifies as the “innocent party” entitled to a fault-based divorce. When both spouses had affairs, for example, recrimination can force both into a no-fault track.
What Fault Actually Gets You
Spousal Support
This is where the financial consequences hit hardest. If your spouse proves adultery against you, Virginia law creates a near-total bar on your ability to receive spousal support.5Virginia Code Commission. Virginia Code 20-107.1 – Court May Decree as to Maintenance and Support of Spouses A narrow “manifest injustice” exception exists, requiring clear and convincing evidence that the economic disparity outweighs the fault, but it is hard to win and reserved for extreme hardship cases.
Beyond the adultery bar, fault is one of thirteen factors courts weigh in deciding support. The statute directs judges 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 may see a reduced award even without the outright bar that attaches to adultery.
Property Division
Virginia divides marital property through equitable distribution, and fault is one of the statutory factors courts weigh. The law lists adultery, felony conviction, cruelty, and desertion as relevant considerations.6Virginia Code Commission. Virginia Code 20-107.3 – Court May Decree as to Property and Debts of the Parties Fault is just one factor among many, though. Judges also weigh the length of the marriage, each spouse’s financial and nonfinancial contributions, ages and health, and tax consequences. A judge is unlikely to award one spouse 80% of the estate solely because the other committed adultery. Fault can tip the scales when the other factors are close to even.
Child Custody
Custody turns on the best interests of the child, not on which parent was at fault in the divorce.7Child Welfare Information Gateway. Determining the Best Interests of the Child – Virginia Fault matters to custody only when the misconduct touches the children directly. An affair the children never knew about is unlikely to shift anything. A history of family abuse, substance abuse that impairs parenting, or a felony conviction that removes a parent from the household will matter, because those facts affect the child’s safety.
Evidence: The Corroboration Rule
Virginia will not grant a fault-based divorce on the testimony of the spouses alone. The law requires corroboration: at least one independent witness or piece of evidence supporting your claims.8Virginia Code Commission. Virginia Code 20-99 – How Such Suits Instituted and Conducted; Costs The requirement applies to every fault ground.
Your corroborating witness needs firsthand knowledge. For cruelty, that might be a neighbor who witnessed violent incidents, a family member who saw injuries, or a medical professional who documented them. For desertion, someone who observed your spouse leave and can describe the circumstances. For adultery, the bar is higher because of the clear-and-convincing standard, and private investigators, phone records, hotel receipts, and witnesses who can establish both opportunity and inclination are common. Even when the defendant does not contest the case, the court independently evaluates the evidence. You cannot skip corroboration by getting your spouse to agree to the allegations.
How and Where to File
At least one spouse must have been a good-faith resident of Virginia for at least six months before filing.9Virginia Code Commission. Virginia Code 20-97 – Domicile and Residential Requirements for Suits for Annulment, Affirmance, or Divorce You file the Complaint for Divorce with the Clerk of the Circuit Court in the city or county where at least one spouse lives. The complaint must 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 pin down precise dates and places.
Filing fees vary by locality rather than following a uniform statewide amount, so contact the circuit court clerk’s office for the current figure.10Virginia Judicial System Court Self-Help. Filing Fees and Waivers After you file, the court issues a summons that must be formally served on your spouse. The sheriff’s office serves papers for a statutory fee of $12, or you can hire a private process server.11Virginia Code Commission. Virginia Code 17.1-272 – Process and Service Fees Generally Your spouse typically has 21 days to respond. A cooperative spouse can sign a notarized waiver of service to skip the formal delivery. Contested fault cases then move into discovery, depositions, and potentially a trial. Uncontested cases still require a hearing with corroborating evidence before a judge will sign the final decree.