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

Virginia recognizes one no-fault ground and four fault-based grounds for divorce. The no-fault route requires living separately for a set period. The fault grounds for divorce in Virginia are adultery (including sodomy and buggery), a felony conviction with imprisonment, cruelty or reasonable fear of bodily harm, and willful desertion. Which ground you use affects how long you wait, what you have to prove, and whether fault reshapes spousal support and property division.

No-Fault Divorce After Separation

Most Virginia divorces proceed on no-fault grounds, which means no one has to prove wrongdoing. You and your spouse must live separate and apart, without cohabitation, for an uninterrupted period of one year.¹ “Separate and apart” requires both physical separation and at least one spouse’s intent to end the marriage permanently. Sleeping in separate bedrooms while otherwise sharing a household in the usual way is not enough.

The waiting period drops to six months if two conditions are both met: the couple has no minor children, biological or adopted, and both spouses have signed a property settlement agreement resolving assets, debts, and spousal support.¹ Without that signed agreement, even childless couples wait the full year.

Reconciling during the waiting period, even briefly, resets the clock. Courts look at whether cohabitation resumed, so returning to a shared bed or the usual marital routine risks starting the timeline over.

Separation Under the Same Roof

Not everyone can afford two households during the waiting period. Virginia’s Court of Appeals has recognized that spouses can live separate and apart under one roof in some circumstances. You need to show a genuine separation of lives: different rooms, no shared meals, no household services for each other, and no holding yourselves out to the community as a married couple. Courts scrutinize these arrangements closely, and they are harder to prove than a clean physical move, but it is legally possible.

Proving the Separation

Since July 1, 2021, Virginia no longer requires a corroborating witness for no-fault divorces. Either party may submit evidence by affidavit, swearing under oath that the couple has lived separately, continuously, without cohabitation, and with intent to remain permanently apart for the required period.² Affidavit practice without a court hearing is allowed when the parties have resolved all issues through a written settlement agreement, when there are no contested issues beyond the grounds, or when the other spouse was served and did not respond.

Fault-Based Grounds

Virginia also allows a spouse to seek divorce by proving specific marital misconduct. Filing on fault grounds does not shorten the six-month residency rule, but it can let you proceed without waiting out a long separation. Fault findings also carry real financial consequences, especially for spousal support.

Adultery, Sodomy, or Buggery

A divorce can be granted when one spouse engaged in sexual relations outside the marriage.¹ This ground requires clear and convincing evidence, a higher standard than most civil cases demand. Circumstantial evidence can suffice, but it must be strong enough to lead the court to a firm belief that the misconduct occurred. A criminal conviction is not required.

Virginia bars this ground in three situations. A court will not grant a divorce for adultery if the filing spouse voluntarily resumed living with the other spouse after learning of the affair, if the affair happened more than five years before the suit was filed, or if the filing spouse actually encouraged or arranged the misconduct.³ The five-year window is a hard cutoff.

Felony Conviction

If your spouse is convicted of a felony after the marriage, sentenced to more than one year of confinement, and actually imprisoned, you have grounds for divorce.¹ All three elements must be present: the conviction, the sentence length, and actual confinement. A felony conviction before the marriage does not qualify. You also cannot use this ground if you resumed living with your spouse after learning of the imprisonment. A governor’s pardon does not restore the convicted spouse’s marital rights once this ground is established.

Cruelty, Fear of Bodily Harm, and Desertion

A full divorce can be granted when one spouse has been guilty of cruelty, created a reasonable fear of bodily harm, or willfully deserted the other. A full year must pass from the date the cruelty occurred or the desertion began before the court can grant the complete divorce on these grounds.¹ That waiting period catches many people off guard, because cruelty and desertion feel urgent, but Virginia’s statute requires the delay. Unlike no-fault cases, fault-based cases still require a corroborating witness at the final hearing.

Divorce From Bed and Board

If you need legal relief immediately after cruelty or desertion but cannot wait a year, Virginia offers a middle option: a divorce from bed and board. This is a court-ordered legal separation, not a full dissolution. It allows the court to divide property, award support, and arrange custody, but neither spouse may remarry.⁴

The grounds available for a bed-and-board divorce are cruelty, reasonable fear of bodily harm, and willful desertion or abandonment. A suit on these grounds can be filed as soon as the separation occurs, with no waiting period. After at least one year has passed since the original separation date, either party may ask the court to merge the bed-and-board decree into a full divorce, which then allows both spouses to remarry.

Defenses That Can Defeat a Fault Claim

A spouse accused of marital misconduct has several statutory defenses that can defeat a fault-based divorce claim.

Condonation. If the filing spouse learned about the misconduct and then voluntarily resumed the marital relationship, the court treats the behavior as forgiven. This applies only to misconduct the innocent spouse actually knew about. Moving back in after discovering an affair, for example, can destroy the ability to file on adultery grounds.⁵
Connivance. This defense applies when the filing spouse consented to or actively encouraged the misconduct before it happened. The distinction from condonation matters: connivance is pre-misconduct consent, condonation is post-misconduct forgiveness.⁵
Recrimination. When both spouses are guilty of fault grounds, the accused spouse can argue that the filing spouse’s own misconduct bars a fault-based divorce. If both committed adultery, neither may succeed on that ground.
Five-year time limit. For adultery, no divorce will be granted if the misconduct occurred more than five years before the suit was filed.⁵

Successfully raising one of these defenses blocks the divorce on that particular fault ground. The filing spouse could still pursue a no-fault divorce based on separation, but the fault claim itself fails.

How the Choice of Ground Affects Money

Picking between no-fault and fault is not just procedural. A fault finding carries financial consequences that can significantly change the outcome.

Spousal Support

Virginia law bars a spouse found guilty of adultery from receiving permanent spousal support.⁶ This is one of the most consequential provisions in Virginia divorce law. If adultery is proven by clear and convincing evidence, the court will deny support unless the paying spouse’s position would create a “manifest injustice.” That exception requires clear and convincing evidence that denial would be obviously unfair given the relative fault of both spouses and the economic circumstances of each party. Courts do not grant the exception lightly.

Property Division

When dividing marital property, Virginia courts weigh a list of statutory factors. One of those factors is the circumstances that contributed to the dissolution of the marriage, specifically including fault grounds such as adultery, felony conviction, cruelty, and desertion.⁷ Fault does not automatically give the innocent spouse a larger share, but the judge weighs it alongside each spouse’s contributions to the marriage, the duration of the marriage, and the financial position of each party.

Residency: The Threshold Before Any Ground Applies

Before a Virginia circuit court can hear any divorce case, at least one spouse must have been a genuine resident of the Commonwealth for a continuous period of at least six months immediately before filing.⁸ Residency means more than a Virginia address. You need to show intent to remain in the state indefinitely, which courts evaluate through actions like registering to vote, obtaining a Virginia driver’s license, and paying state taxes. If neither spouse meets the six-month threshold, the circuit court lacks jurisdiction. The case has to wait, or it has to be filed in a state where one spouse does qualify.

Virginia law creates a presumption for active-duty service members. If a member of the Armed Forces has been stationed at a military installation in Virginia, or aboard a ship with a Virginia home port, for six months or more before filing, that person is presumed to meet the residency requirement.⁸ The same presumption extends to service members and federal civilian employees stationed overseas or in a U.S. territory, provided they were domiciled in Virginia for the six months immediately before being stationed outside the Commonwealth.

1
Virginia Code Commission. Virginia Code 20-91 – Grounds for Divorce from Bond of Matrimony; Contents of Decree
2
Virginia Code Commission. Virginia Code 20-106 – Testimony May Be Required to Be Given Orally; Evidence by Affidavit
3
Virginia Code Commission. Code of Virginia – Chapter 6. Divorce, Affirmation and Annulment
4
Virginia Code Commission. Code of Virginia – Chapter 6. Divorce, Affirmation and Annulment – Section 20-95
5
Virginia Code Commission. Code of Virginia – Chapter 6. Divorce, Affirmation and Annulment – Section 20-94
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
Virginia Code Commission. Virginia Code 20-97 – Domicile and Residential Requirements for Suits for Annulment, Affirmance, or Divorce