Grounds for Divorce in Virginia: Fault, No-Fault, and Separation

Virginia law recognizes five grounds for divorce in Virginia: one no-fault ground based on living separate and apart, and four fault grounds — adultery (along with sodomy or buggery outside the marriage), cruelty or reasonable fear of bodily harm, willful desertion or abandonment, and felony conviction after the marriage. All five are set out in Virginia Code § 20-91.¹ The ground you choose controls how long you have to wait, what you have to prove, and in some cases whether you can receive spousal support at all.

No-Fault: Living Separate and Apart

The no-fault option does not require proving anyone did anything wrong. The couple must simply live separate and apart, without cohabiting and without interruption, for one continuous year.¹ A brief reconciliation under the same roof can reset the clock.

The waiting period drops to six months if two conditions are met: there are no minor children, and the spouses have signed a written separation agreement resolving property and debts.¹ Without that agreement, the full year applies even if you have no children.

Living “separate and apart” is more than sleeping in different bedrooms. Courts look for an outward showing of independent lives: separate finances, separate meals, and a clear signal to others that the marriage has ended. The clock starts when at least one spouse forms the intent to end the marriage and acts on it by physically separating.

Adultery

Adultery is the only ground with no mandatory waiting period. A spouse can file immediately on learning of the infidelity, with no required separation first.¹ The same subsection also covers sodomy or buggery committed outside the marriage.

Because adultery is also a criminal offense in Virginia, the proof standard is higher than in most civil cases. You must show it by clear and convincing evidence, not just by what is more likely than not. That typically means strong corroboration: communications, photographs, financial records showing hotel stays, or testimony from someone with direct knowledge. Circumstantial evidence can carry the day, but it has to point almost inescapably to the conclusion.

Two hard limits apply. The alleged adultery cannot be more than five years old at the time of filing. And if the accusing spouse kept living with the other spouse after learning of the affair, the court treats that as condonation and bars the claim.² The claim also fails if the accusing spouse encouraged or helped bring about the conduct.

Cruelty and Reasonable Fear of Bodily Harm

Virginia allows divorce where one spouse has been guilty of cruelty or caused the other a reasonable fear of physical harm. The ground usually rests on a pattern of abusive behavior, though a single serious act of violence can be enough when it creates a lasting, well-founded fear of future harm.¹

Actual physical contact is not required. If the behavior would make a reasonable person fear for their safety, that satisfies the standard. Courts weigh verbal threats, property destruction, past violent incidents, and the general atmosphere in the home.

A key timing rule: a final decree on cruelty grounds cannot be entered until one year after the act of cruelty.¹ You can file the suit before the year is up, but the court will not finalize the divorce until the waiting period runs. In the meantime, Virginia courts can issue protective orders and award temporary support.³

Willful Desertion and Abandonment

Desertion has two elements: physically leaving the marital home, and intending to end the marriage permanently. Moving out for work, by mutual agreement, or for other temporary reasons is not desertion in the legal sense. The departure must be unjustified and without the other spouse’s consent.¹

Desertion carries a one-year waiting period. The spouse who left must have been gone continuously for a full year before a court will grant a final decree on this ground.¹ If the departing spouse makes a good-faith attempt to return and is refused, the roles can reverse: the spouse who refused reconciliation may become the deserter.

Virginia also recognizes constructive desertion. If one spouse’s behavior is so intolerable that the other is effectively forced out, the one who physically left is not the deserter. The spouse whose misconduct drove them away is. That matters because the statute’s “innocent party” designation determines who can obtain the divorce on this ground.

Felony Conviction After the Marriage

A spouse convicted of a felony after the date of the marriage, sentenced to more than one year of confinement, and actually confined can be divorced on that basis.¹ All three elements have to line up. A felony that results in probation alone does not qualify.

The statute also contains a waiver. If the non-incarcerated spouse learns of the confinement and then resumes living with the convicted spouse after release, the ground is lost.² A pardon does not restore the convicted spouse’s marital rights once this ground has been established.

How the Ground You Choose Affects Money

Picking a fault ground is not just about ending the marriage sooner. It carries real financial weight, especially for spousal support.

Virginia law creates a near-total bar on permanent spousal support for a spouse found guilty of adultery. The only escape is a “manifest injustice” exception based on both spouses’ relative fault and financial circumstances, and the spouse seeking support must prove the injustice by clear and convincing evidence.⁴ Courts rarely cross that bar without extreme facts.

Even without adultery, the court must consider the circumstances that led to the divorce when setting support. Cruelty, desertion, and felony conviction are all factors the judge weighs alongside income, earning capacity, and the length of the marriage.⁴

Property division works similarly. Virginia is an equitable distribution state, so the court divides marital property based on fairness rather than a strict even split. The factors that led to the breakdown of the marriage, including any fault ground, are one of the considerations.⁵ Fault tends to move support more than it moves property, but it can affect both.

Defenses That Can Defeat a Fault Claim

Filing on fault grounds is not a guarantee of success. Virginia recognizes several defenses, and any one of them can sink the claim.

Condonation. If you learned of the misconduct and voluntarily resumed the marital relationship, the court treats that as forgiveness. For adultery, continuing to live together after discovery bars the claim.²
Five-year time bar. An adultery claim cannot proceed if the act occurred more than five years before filing.²
Connivance or procurement. If the accusing spouse set up or encouraged the misconduct, the court will deny the ground.
Recrimination. Historically, if both spouses were at fault, neither could obtain a divorce. The no-fault ground effectively works around this, because a court can still grant a separation-based divorce regardless of mutual fault.¹

Because of these defenses, it is common to file on both fault and no-fault grounds. If the fault claim fails, the separation ground can still carry the case to a final decree.

A Separate Track: Divorce From Bed and Board

Virginia also offers a divorce from bed and board, which is a court-ordered legal separation rather than a full dissolution. It is available on three grounds: cruelty, reasonable fear of bodily harm, and willful desertion or abandonment.² You remain legally married and cannot remarry, but the court can divide property, award support, and set custody. A bed-and-board decree can later be merged into a full divorce without re-proving the original grounds.⁶ It is sometimes used by spouses who need immediate court orders on money or custody but have not yet met the waiting periods for a full divorce.

1
Virginia Code Commission. Virginia Code 20-91 – Grounds for Divorce From Bond of Matrimony; Contents of Decree
2
Virginia Code Commission. Code of Virginia – Chapter 6, Divorce, Affirmation and Annulment
3
Virginia Code Commission. Virginia Code 20-103 – Court May Make Orders Pending Suit for Divorce, Custody and Visitation Arrangements, Maintenance and Support of Minor Children, Maintenance and Support of Spouse, Suit Money, and Counsel Fee
4
Virginia Code Commission. Virginia Code 20-107.1 – Court May Decree as to Maintenance and Support of Spouses
5
Virginia Code Commission. Virginia Code 20-107.3 – Court May Decree as to Property and Debts of the Parties
6
Virginia Code Commission. Virginia Code 20-117 – Divorce From Bond of Matrimony After Divorce From Bed and Board