Fault Divorce in Virginia: Grounds, Proof, and Effects

This topic is part of Adultery and Fault-Based Divorce.

In this article

1. The Fault Grounds Under Virginia Code § 20-91
2. Adultery
3. Cruelty and Reasonable Apprehension of Bodily Hurt
4. Desertion and Abandonment
5. Felony Conviction and Confinement
6. Corroboration
7. Defenses
8. What a Fault Ground Changes
9. Deciding Whether to Plead Fault

Most Virginia divorces are granted on the no-fault ground of separation. Fault grounds still matter, sometimes decisively. A fault ground can bar a spouse from receiving spousal support, it can be weighed in the division of property, and the facts behind it can shape the rest of the case. This post explains the fault grounds in the current Virginia Code, what each requires, how they are proven, and what they change.

The Fault Grounds Under Virginia Code § 20-91

Virginia Code § 20-91(A) lists the grounds for a divorce from the bond of matrimony (an absolute divorce). Three are fault-based:

• Adultery, sodomy, or buggery (§ 20-91(A)(1)). As amended effective July 1, 2026, the ground covers “adultery that occurred prior to the date of the last separation of the parties,” or sodomy or buggery committed outside the marriage.
• Felony conviction and confinement (§ 20-91(A)(3)). A spouse has been convicted of a felony after the marriage, sentenced to confinement for more than one year, and confined, and the parties have not resumed cohabitation after the other spouse learned of the confinement.
• Cruelty, reasonable apprehension of bodily hurt, or willful desertion or abandonment (§ 20-91(A)(6)). The divorce may be decreed to the innocent spouse “after a period of one year from the date of such act.”

The no-fault ground is separation: one year, or six months where the parties have a separation agreement and no minor children (§ 20-91(A)(9)).

Adultery

The 2026 change

For divorce purposes, adultery now counts only if it occurred before the parties’ last separation. Conduct after the separation may still matter elsewhere in the case, but it no longer supplies a ground for divorce under § 20-91(A)(1). The 2026 amendments are discussed in Changes to Virginia Divorce Law on July 1, 2026.

The standard of proof

Adultery must be proven by clear and convincing evidence. “One who alleges adultery has the burden of proving it by clear and convincing evidence.” Seemann v. Seemann, 233 Va. 290, 293 (1987). Suspicion is not enough: “Strongly suspicious circumstances are inadequate.” Painter v. Painter, 215 Va. 418, 420 (1975). In Dooley v. Dooley, 222 Va. 240 (1981), the Supreme Court of Virginia reversed an adultery finding because the evidence raised only a suspicion. For the kinds of evidence that meet the standard, see Proving Adultery in Virginia.

Statutory bars

Under Virginia Code § 20-94, a divorce for adultery, sodomy, or buggery will not be granted if the parties voluntarily cohabited after the spouse seeking the divorce learned of it, if it occurred more than five years before the suit was filed, or if it was committed “by the procurement or connivance” of the spouse alleging it.

The Fifth Amendment

Adultery remains a misdemeanor in Virginia, so a spouse asked about it may invoke the privilege against self-incrimination. Since 2020, in a divorce filed on or after July 1, 2020, the trier of fact may draw an adverse inference from a refusal to answer a question about that conduct. Va. Code § 8.01-223.1. For how the inference works in practice, see Adultery and the Fifth Amendment in Virginia Divorce.

Cruelty and Reasonable Apprehension of Bodily Hurt

Cruelty sufficient for a divorce is “conduct that tends to bodily harm, and thus renders cohabitation unsafe; or that involves danger to life, limb or health.” DeMott v. DeMott, 198 Va. 22, 28 (1956). A single act ordinarily does not suffice “unless it is so severe and atrocious as to endanger life, or unless the act indicates an intention to do serious bodily harm,” or the circumstances show it is likely to be repeated. Id. Physical violence is not always required. The Supreme Court of Virginia has recognized that “[m]ental anguish, repeated and unrelenting neglect and humiliation, may be as bad as physical wounds.” Hoffecker v. Hoffecker, 200 Va. 119, 125 (1958) (quoting an earlier decision). Ordinary unhappiness is not enough. Courts will not end a marriage “merely because husband and wife, through unruly tempers, lack of patience and uncongenial natures, live unhappily together.” Id. at 125–26 (quoting an earlier decision).

Timing matters. A divorce on this ground may be decreed only after one year from the date of the act. Va. Code § 20-91(A)(6). A divorce from bed and board, a limited divorce, may be sought for cruelty without a waiting period, but it may be decreed only in accordance with § 20-91. Va. Code § 20-95.

Desertion and Abandonment

“A party is guilty of desertion . . . when he or she breaks off matrimonial cohabitation with an intent to desert.” Breschel v. Breschel, 221 Va. 208, 211 (1980). Both elements are required: leaving, and an intent to end the marriage. A remark that a spouse might not return does “not establish a clear intent to desert the marriage.” Graves v. Graves, 4 Va. App. 326, 331–32 (1987). A spouse whose departure was legally justified is not guilty of desertion. Breschel, 221 Va. at 211. A gradual breakdown of the relationship, however, is not justification. Seemann, 233 Va. at 295. A separation by mutual consent does not support a desertion finding. Konefal v. Konefal, 18 Va. App. 612, 614 (1994).

Constructive desertion

Desertion does not always require a physical departure. In Chandler v. Chandler, 132 Va. 418, 430–31 (1922), the Supreme Court of Virginia held that the willful withdrawal of sexual relations without just cause can constitute desertion. It did so only where the withdrawal was accompanied by a breach and neglect of other marital duties serious enough “to practically destroy home life.” A spouse who leaves and claims the other spouse’s conduct drove her out must show conduct “sufficient to establish the foundation of a divorce proceeding.” Breschel, 221 Va. at 212.

Felony Conviction and Confinement

The felony ground has four statutory elements: a felony conviction after the marriage, a sentence of confinement for more than one year, actual confinement, and no resumption of cohabitation after the other spouse learned of the confinement. Va. Code § 20-91(A)(3). A pardon does not restore the convicted spouse’s conjugal rights. Id.

Corroboration

Except for a divorce on the separation ground, no divorce may be granted “on the uncorroborated testimony of the parties or either of them.” Va. Code § 20-99(1). The purpose of the requirement is to prevent collusion. Where there is no collusion, “the corroboration needs to be only slight,” and corroborating evidence “need not be sufficient, standing alone, to prove the alleged ground for divorce.” Pommerenke v. Pommerenke, 7 Va. App. 241, 245 (1988) (quoting earlier decisions). Testimony that is not corroborated “cannot be considered.” Rowand v. Rowand, 215 Va. 344, 345 (1974).

Defenses

• Recrimination. Where each spouse has committed a fault ground, each may be barred from a divorce on that ground. That leaves separation as the available ground. Davis v. Davis, 8 Va. App. 12, 16–17 (1989); Surbey v. Surbey, 5 Va. App. 119, 123 (1987).
• Condonation. Condonation is forgiveness of the misconduct, usually shown by resuming normal marital relations with knowledge of it. Hollis v. Hollis, 16 Va. App. 74 (1993). For adultery, § 20-94 makes voluntary cohabitation after knowledge a statutory bar.
• Procurement or connivance. A spouse who procured or connived at the adultery cannot rely on it. Va. Code § 20-94.

What a Fault Ground Changes

Spousal support

Under Virginia Code § 20-107.1(B), no permanent support may be awarded to a spouse if a ground of divorce under § 20-91(A)(1) exists in the other spouse’s favor, which means if that spouse committed adultery, sodomy, or buggery. The bar is not absolute. The court may award support notwithstanding the ground if it finds by clear and convincing evidence that denying support “would constitute a manifest injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties.” Both considerations are required. Congdon v. Congdon, 40 Va. App. 255 (2003). Because the bar is tied to § 20-91(A)(1), it appears that, after the 2026 amendment, adultery committed after the last separation no longer triggers it. For more on support, see our page on receiving spousal support in Fairfax and Loudoun, and what an adultery finding changes.

Property division

In dividing marital property, the court must consider “the circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce” under § 20-91(A)(1), (3), or (6), or § 20-95. Va. Code § 20-107.3(E)(5). Fault is one factor among many, and it is not a license to punish. “Fault is not a ‘wild card’ that may be employed to justify what otherwise would be an arbitrary or punitive award.” O’Loughlin v. O’Loughlin, 20 Va. App. 522 (1995). The court looks at how the conduct affected the marital estate or the well-being of the family. Id.; Aster v. Gross, 7 Va. App. 1 (1988).

Custody and fees

Custody is decided on the child’s best interests under § 20-124.3. A spouse’s marital misconduct matters there only to the extent it bears on the child. The conduct of the parties can also bear on an award of attorney’s fees; see who pays attorney’s fees in a Virginia divorce.

Deciding Whether to Plead Fault

Pleading a fault ground has costs: proof by clear and convincing evidence, corroboration, discovery into private conduct, and a more contested case. It can also change the economics of the case decisively, particularly on spousal support. Whether to plead fault, and which ground, should be decided early, with the evidence in hand and the effect on support and property in view. For how marital conduct bears on that decision, see Repair or File? How Marital Conduct Affects a Virginia Divorce. The statutory summary is on our fault grounds page.

This article provides general information about Virginia law and is not legal advice. Reading it does not create an attorney-client relationship. The application of the law depends on the specific facts of each case.