In Virginia, there are two types of divorce: no-fault uncontested divorces and fault-based contested divorces. While no-fault divorces are often quicker and less expensive, fault-based divorces can sometimes be advantageous. For example, a fault-based divorce due to adultery can be filed immediately, without a waiting period. Other grounds, like desertion, cruelty, or a felony conviction, might require a waiting period but could offer benefits during the divorce process, especially when dividing marital property.
If you’re involved in a fault-based divorce—whether you’re filing or defending against one—it’s important to understand the common defenses against these claims. Here are some key defenses:
Recrimination
- Recrimination happens when both spouses accuse each other of the same fault. For instance, if one spouse accuses the other of adultery, and the accused spouse responds with the same accusation. This can complicate the divorce and might prevent either spouse from winning the case.
Connivance
- Connivance is when the accused spouse claims that the other spouse consented to or encouraged the misconduct. For example, if one spouse sets up a situation where the other is likely to commit adultery, and then uses that as grounds for divorce. Proving connivance can be difficult, as it requires evidence that the spouse actively agreed to or promoted the wrongdoing.
Condonation
- Condonation means that the wronged spouse forgave the misconduct by continuing to live with and have a relationship with the offending spouse. If a spouse forgives adultery and stays in the marriage, they may not be able to use it as grounds for divorce later.
Justification
- Justification can be used as a defense if the accused spouse can prove that leaving the marriage was reasonable due to the other spouse’s behavior. For instance, if one spouse was so abusive or neglectful that it was impossible for the other to stay in the marriage, leaving might be justified.
Collusion
- Collusion is when a spouse fabricates evidence to support a fault-based divorce.
Understanding these defenses is crucial whether you’re filing for a fault-based divorce or defending against one. Consulting with an experienced attorney can help you navigate these complex situations.
