Repair or File? How Marital Conduct Affects a Virginia Divorce
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September 22, 2026
The episode
Terry Real supplies the organizing frame: the rhythm of every relationship is harmony, then disharmony, then repair. Conflict is not the failure. The absence of repair is. He also makes a point that cuts against most people’s instincts — repair is, as he puts it, a one-way street. You do not wait for your spouse to earn it. Esther Perel reaches for John Gottman’s Four Horsemen — criticism, contempt, defensiveness, and stonewalling — and offers a discipline in place of them: don’t complain, ask. Behind nearly every criticism there is an unspoken request. Contempt, in Gottman’s research, is the single strongest predictor that a marriage will end. Dr. Sue Johnson names the pattern most high-conflict couples are actually stuck in — the demand-withdraw spiral, one spouse pursuing and the other retreating — and argues from attachment research that emotional isolation is genuinely corrosive, not merely unpleasant. The rest fill in the method. Sheila Heen observes that couples mostly fight about how they fight, and that naming the pattern out loud deflates it. Jim Dethmer insists on separating fact from story. Brené Brown dismisses the 50/50 marriage as fiction and describes partnership as the willingness to carry the other person’s twenty percent. Brad Feld runs a monthly “life dinner” so grievances get a scheduled forum instead of ambushing a Tuesday. Diana Chapman describes periodically letting the marriage go in order to re-choose it. None of that is legal advice, and much of it is good advice. The question for a Virginia reader is what happens to any of it once a case is filed.Virginia does not grade marriages — but it does read conduct
A Virginia court is not in the business of deciding who was the better spouse. Its jobs are narrower: dissolve the marriage, divide the property, set support, and — where children are involved — determine their best interests. Conduct enters that analysis only where a statute lets it in, and it does so at four distinct doors with four different thresholds. Conflating them is a common mistake I see in consultations.1. Cruelty as a ground for divorce
Under Va. Code § 20-91(A)(6), a divorce may be decreed “[w]here either party has been guilty of cruelty, caused reasonable apprehension of bodily hurt, or willfully deserted or abandoned the other,” with a one-year wait from the date of the act before a divorce from the bond of matrimony may be entered on that basis. Read that against the podcast. Contempt, stonewalling, chronic criticism, the demand-withdraw spiral — these are real injuries, and they end marriages. Standing alone, they are also a poor fit for the statutory ground. Virginia courts have historically set a demanding bar for cruelty, and a claim resting on emotional conduct generally has to be tied to a demonstrated effect on the complaining spouse’s health or safety. Whether a record clears that bar is a fact-intensive proof question, not a question of how the marriage felt from the inside. Two 2026 amendments are worth knowing before you plan around any of this. Va. Code § 20-95 now permits a divorce from bed and board “on the application of either party upon the parties living separate and apart with the intent of at least one of the parties to remain separate and apart permanently” — no fault required. And § 20-91(A)(1) now reaches only “adultery that occurred prior to the date of the last separation of the parties.” We covered both in our summary of the 2026 amendments, and treat the grounds generally in fault grounds for divorce in Virginia.2. Negative non-monetary contributions in equitable distribution
This is the door that surprises people, and it is a genuinely different question from cruelty — different statute, different threshold, different proof. In dividing marital property, Va. Code § 20-107.3(E) directs the court to weigh “[t]he contributions, monetary and nonmonetary, of each party to the well-being of the family” (E)(1), the same contributions as to the marital property itself (E)(2), and “[t]he circumstances and factors which contributed to the dissolution of the marriage” (E)(5). Contributions can run negative. A spouse whose conduct depleted the household rather than sustained it is not always treated as neutral. The limiting principle matters as much as the opening. In O’Loughlin v. O’Loughlin, 20 Va. App. 522, 458 S.E.2d 323 (1995), the Court of Appeals held that fault “is not a ‘wild card’ that may be employed to justify what otherwise would be an arbitrary or punitive award,” and that where fault is relevant, “the trial judge is required to consider it objectively, and how, if at all, it quantitatively affected the marital estate or well being of the family.” Note the disjunctive: the effect need not be a dollar figure. But it must be shown with evidence rather than asserted with adjectives — a point reinforced by Aster v. Gross, 7 Va. App. 1, 371 S.E.2d 833 (1988), which confirmed that a trial judge “need only consider those circumstances leading to the dissolution of the marriage that are relevant to determining a monetary award.” So a years-long pattern of contempt and withdrawal that hollowed out a household is not irrelevant merely because it was not “cruelty” under § 20-91. It reaches the court through a different provision with its own requirements. These are not two versions of one argument — the cruelty ground and the § 20-107.3(E) factors turn on genuinely different showings, and a record that fails the first can still carry the second. For how the division itself works, see our overview of equitable distribution in Virginia.3. Spousal support
Va. Code § 20-107.1(E) opens by directing the court to consider “the circumstances and factors which contributed to the dissolution of the marriage,” and factor (6) again reaches “[t]he contributions, monetary and nonmonetary, of each party to the well-being of the family.” Adultery carries its own bar under subsection (B), subject to a manifest-injustice exception the Court of Appeals has read as conjunctive — clear and convincing evidence of both the parties’ respective degrees of fault and their relative economic circumstances. Barnes v. Barnes, 16 Va. App. 98, 428 S.E.2d 294 (1993); Congdon v. Congdon, 40 Va. App. 255, 578 S.E.2d 833 (2003). Barnes contains the sentence most relevant to this discussion. Fault during the marriage, the court held, is not confined to legal grounds for divorce; it “encompasses all behavior that affected the marital relationship, including any acts or conditions which contributed to the marriage’s failure, success, or well-being.” That is a wide door — and it opens in both directions. More on the framework in our starting guide to spousal support in Virginia.4. Custody, where the repair skills never stop mattering
Here the podcast’s material is nearly on the nose. Va. Code § 20-124.3 requires the court to consider, as factor (6), “[t]he propensity of each parent to actively support the child’s contact and relationship with the other parent,” and as factor (7), “[t]he relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child.” Read Terry Real’s “repair is a one-way street” next to factor (7). A parent who can de-escalate without requiring the other parent to go first is describing exactly the capacity the statute asks a judge to measure. A parent who cannot will demonstrate the opposite in writing, in text messages, for two years running. Cases are won and lost on nothing more exotic than whose messages a judge could stand to read. Our discussion of how Fairfax and Loudoun judges decide contested custody cases covers the factor analysis in more depth, as does our overview of the best interests of your child. One caveat: where the court finds a history of family abuse, sexual abuse, child abuse, or a qualifying act of violence, force, or threat, the statute permits it to disregard factor (6) altogether. This is not a trap for a parent who has good reason not to cooperate.Four practical cautions before you try any of this
A sincere repair attempt is not a legal concession. Trying to save your marriage does not waive anything, and it does not signal to a court that the conduct you endured was tolerable. If the attempt fails, you will at least know it failed for real reasons. Reconciliation and the separation clock interact. Virginia’s no-fault grounds run on a continuous period of living separate and apart, and resuming the marital relationship can interrupt that period and reset it. If you are already separated and considering a reconciliation attempt, get advice on how to structure it before you move back in. Do not manufacture a record. There is a difference between keeping an accurate contemporaneous account and performing one. Judges in Northern Virginia see a great deal of the latter, and it reads exactly as it is. Dethmer’s fact-versus-story discipline is, as it happens, also good evidentiary hygiene: write down what happened, not what it meant. Assume nothing about counseling confidentiality. Whether a therapist’s records or testimony can be reached in a Virginia divorce or custody case depends on the applicable privilege, who the patient is, whether a party has placed his or her condition in issue, and whether a waiver has occurred. Marriage counseling is not a sealed vault by default — raise it with counsel before the first session, not after a subpoena.The honest summary
Episode #880 is worth your time if you are trying to decide whether your marriage is finished. The tools in it are sound, and several — the harmony-disharmony-repair rhythm, asking instead of complaining, naming the pattern out loud — are the same skills that separate a survivable co-parenting relationship from a decade of motions. What it cannot tell you is what Virginia law will do with the marriage you already have. Contempt that destroys a household may or may not be cruelty under § 20-91. It may or may not register as a negative non-monetary contribution under § 20-107.3(E). If there are children, it will almost certainly matter under § 20-124.3. Three questions, three answers, each turning on the specific facts and dates in your case. If you are still deciding, our post on navigating marital ambivalence without legal fault in Virginia is the natural next read. If assets, a closely held business, or executive compensation are in the picture, see high-asset divorce in Virginia. And if you would rather work through the specifics than the generalities, reach out. A conversation before you decide is almost always cheaper than one afterward.This post discusses Virginia law in general terms and is not legal advice. Statutes and case law change, and the outcome of any matter depends on its own facts. For advice about your situation, consult a Virginia family law attorney.
