Fault Grounds for Divorce in Virginia Family Law

In Virginia family law, divorce can be pursued on either fault or no-fault grounds. While no-fault divorce based on separation is common, there are times when alleging a fault ground is necessary — for financial, strategic, or emotional reasons.

This post explains the fault grounds for divorce in Virginia as defined by law, breaks down their legal components, and includes key cases that interpret each ground. If you are navigating a difficult marital situation and wondering about your legal options, understanding fault grounds can be a critical first step.

What Are Fault Grounds for Divorce in Virginia?

Under Virginia Code § 20-91, the Commonwealth recognizes four fault-based grounds for divorce:

• Adultery or sodomy
• Cruelty and reasonable apprehension of bodily harm
• Willful desertion or abandonment
• Conviction of a felony with incarceration

Each of these grounds carries specific legal requirements and, if proven, may impact spousal support, equitable distribution, custody, and attorney’s fees.

1. Adultery or Sodomy

Statute: Virginia Code § 20-91(A)(1)

Definition: Adultery is defined as voluntary sexual intercourse with someone other than your spouse. Sodomy includes oral or anal sex with a non-spouse.

Burden of Proof: Clear and convincing evidence, plus independent corroboration.

Case Law: Pommerenke v. Pommerenke, 7 Va. App. 241 (1988) – Adultery must be supported by more than suspicion; direct or strong circumstantial evidence is required.

Legal Impact: If proven, adultery may bar the guilty spouse from receiving spousal support under Virginia Code § 20-107.1(B), absent manifest injustice.

2. Cruelty and Reasonable Apprehension of Bodily Harm

Statute: Virginia Code § 20-91(A)(6)

Definition: Includes physical violence and, in rare cases, severe emotional abuse that causes serious harm.

Burden of Proof: Can be based on a single egregious act or a pattern of conduct creating fear of bodily injury.

Case Law: Konefal v. Konefal, 18 Va. App. 612 (1994) – A pattern of violence and threats was sufficient to justify divorce on cruelty grounds.

Legal Impact: Can justify immediate filing without a waiting period. May impact custody determinations and equitable distribution.

3. Willful Desertion or Abandonment

Statute: Virginia Code § 20-91(A)(6)

Definition: One spouse leaves the marital relationship without justification and with intent to abandon, or withdraws emotionally and physically while remaining in the home.

Duration Requirement: Must be continuous for at least one year.

Case Law: Buchanan v. Buchanan, 14 Va. App. 53 (1992) – Constructive desertion may occur even if the spouse does not physically leave, but refuses to engage in marital obligations.

Legal Impact: May affect spousal support claims and provide leverage in negotiating custody or use of the marital home.

4. Conviction of a Felony and Incarceration

Statute: Virginia Code § 20-91(A)(4)

Definition: Applies when a spouse has been convicted of a felony, sentenced to confinement for over one year, and the parties have not cohabited afterward.

Case Law: Sargent v. Sargent, 20 Va. Cir. 39 (Fairfax Cty. 1990) – A valid conviction and sentence over one year justified fault-based divorce where no reconciliation occurred.

Legal Impact: May influence custody or visitation determinations depending on the nature of the crime, especially if it involves violence or moral turpitude.

Why Fault Grounds Still Matter in Virginia Family Law

Though many divorces proceed on no-fault grounds, pursuing a fault-based divorce may provide strategic benefits, such as:

• Denial of spousal support to the at-fault party
• Stronger positioning in custody or property disputes
• Potential reimbursement of legal fees

These issues are fact-specific and should be carefully discussed with your attorney. For further discussion, see our post: Is It Worth Proving Fault in a Virginia Divorce?

Evidence and Corroboration in Fault-Based Divorce

Virginia courts require credible, independent corroboration of fault allegations. Examples include:

• Text messages or emails
• Private investigator reports
• Witness testimony
• Medical or police records

Building a strong evidentiary foundation early in your case can be essential if you plan to proceed on fault grounds.

Conclusion: Understanding Your Rights Under Virginia Family Law

Fault grounds for divorce remain a powerful tool under Virginia family law. While not every case calls for a fault-based strategy, when applicable, these grounds can influence outcomes on spousal support, equitable distribution, and custody.

If you’re considering divorce and believe fault may be a factor, consult with an experienced Virginia divorce attorney to explore the best legal path forward. At Curran Moher Weis, we’re here to provide clear, strategic guidance rooted in the law and tailored to your circumstances.