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Virginia Divorce Law: “Fault” vs. “NoFault” Divorce Filings
March 22, 2012Posted by on
If, having exhausted all other attempts at resolving marital issues, you find yourself facing divorce as a viable option, there are a few things you should consider before any initial action is taken. Among the important decisions to be made is the decision of whether to file for divorce on a fault or a no-fault basis. In this post, we will take a look at each of these types of filings in the hopes of shedding some light on the differences between fault and no-fault divorce filings.
“Fault” bases for divorce usually involve contested divorce actions. These are usually expensive, time-consuming, and emotionally draining. If the fault resulted in an economic impact, fault bases for divorce can be beneficial from a financial stand point as a judge is able to allocate marital property and assets in a way to compensate for the fault. A judge is also able to order the faulting party to pay the non-faulting party’s attorney fees. Fault is usually alleged as a reason to begin a divorce suit, so that one can ask the court to freeze marital property, award temporary support and custody (pendente lite relief), and to be able to seek discovery from the other side (requiring your spouse to produce documents and answer questions under oath), which cannot be done without having first filed a divorce suit. Fault is also used as “leverage” for a settlement; divorce files are public records, and the threat of finalizing a divorce on fault grounds may produce a settlement, one term of which is usually finalizing the divorce on “no fault” grounds.
“No fault” divorces, on the other hand, require a separation period of one year (six months if there are no minor children and there is a separation agreement). To establish grounds for being separate, the parties must provide independent evidence, to meet the standard of preponderance of the evidence, that not only are the parties not engaging in marital relations, but they are not holding themselves out to the public as a married couple. Parties may live separate and apart under the same roof, as long as they limit their interactions in such a way that does not mimic a martial relationship.
While we hope that this information has been helpful, please keep in mind that this is a simplified explanation of a potentially complex legal matter. For a more in-depth determination of your specific situation, contact Westlake Legal Group today to schedule your personal consultation.