Legal Professionals of Hirsch & Ehlenberger

What is a no-fault divorce versus a fault divorce?

On Behalf of | Jan 1, 2024 | Divorce

A spouse can file for divorce in Virginia based on either fault or no-fault grounds. A no-fault divorce refers to one where neither spouse is responsible for the irretrievable breakdown of the marriage. The couple could not make the marriage work anymore. A no-fault divorce in Virginia requires you and your spouse to live separately for at least a year. If you and your spouse have entered into a separation agreement and no minor children are involved, then the minimum separation requirement is only six months.

On the other hand, a fault divorce is precisely what its name implies. Someone is responsible for the marriage’s failure. They are at fault. Virginia recognizes several fault-based grounds for divorce, including adultery, felony conviction, cruelty, desertion, and abandonment. If one of these situations applies, a spouse may opt to file for a fault divorce.

Why pursue a fault divorce if your spouse cheated on you?

If your spouse cheated on you, you might want to get them out of your life immediately and make them pay for what they did to you. A fault divorce does not require a minimum separation requirement before one spouse can file, so if you want to get a divorce sooner, then you could consider it. Furthermore, a successful claim of adultery can significantly affect the financial elements of your divorce and give you leverage in settlement negotiations. However, you must be able to prove that your spouse actually committed adultery, which is a criminal offense in Virginia.

Proving adultery

To use adultery as the ground for your fault-based divorce, you must obtain clear and convincing evidence. Proof of an extra-friendly relationship with another person is not enough. The evidence you present must prove that your spouse had sexual intercourse with another person. The following are examples of evidence that can substantiate your claims:

  • A voluntary or involuntary confession from your cheating spouse admitting to the infidelity
  • A corroboration of evidence that confirms or supports your claims of adultery, such as witness testimonies from family, friends or neighbors and photographic evidence
  • Incriminating messages, conversations or emails between your spouse and the person they are cheating on you with
  • Enough circumstantial evidence to make any reasonable person believe your spouse is guilty of adultery

You see if you do not already have evidence, it will be incredibly challenging (but not impossible) to file for divorce on the grounds of adultery.

Nevertheless, filing for a fault divorce could be strategic, especially if the fault grounds could negatively impact your spouse’s reputation. If they want to avoid the public disclosure of their extramarital affair, they may be more likely to settle outside of court and give you what you want.


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