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Fault Based Divorce Defenses

The Virginia Code specifies the grounds upon which a divorce can be granted.  These grounds include fault based grounds, as well as the “no fault” ground of having lived separate and apart for a period of time, during which period one of the parties intended for the separation to be permanent. (For more information, see Grounds for a Virginia Divorce and Virginia No Fault Divorce.) When the divorce is based on fault, however, the non-filing spouse may raise  defenses that, if proven, will prohibit the judge from granting the divorce on fault grounds.

Defenses available in fault based divorces include the following:

  • Connivance: Connivance exists when one spouse encourages the other to create a fault upon which to get a divorce.  For example, if it were determined that the spouses agreed that the husband would have sexual relations with another woman so that the wife could get a divorce for adultery, the court would not be likely to grant the divorce based on adultery.
  • Condonation and Cohabitation: If the innocent spouse, upon knowing that the other spouse has committed a fault, voluntarily cohabits with the spouse at fault, a court will likely hold that the innocent spouse has forgiven, or condoned, the behavior and will not grant the divorce based upon the pre-existing fault.  However, if the offending spouse re-offends, the prior condonation will not be a defense; and the complaining spouse may bring up the condoned act in support of his or her allegations of fault.
  • Recrimination: A recrimination defense exists when both spouses are found to have committed marital fault. For example, if one spouse had an affair, and the other had an affair in return, neither spouse can file for divorce based on adultery, as each would have a recrimination defense.
  • Justification: Justification is usually a defense to a divorce based on desertion. The basis of the justification defense is that the spouse filing for divorce treated the spouse who left the marriage so badly that the departing spouse could not reasonably be expected to remain in the marriage. If justification can be proven, then the court will not grant a divorce based on the “desertion” of the departing spouse.
  • Statute of Limitations: The Virginia Code states that a divorce on the grounds of adultery, sodomy, or bestiality will not be granted if the divorce suit is filed more than five years after the act.  In other words, if the suit is filed more than five years after the other spouse committed one of these sexual faults, the court will not grant the fault-based divorce due to the statute of limitations.
  • Res Adjudicata (also known as res judicata): If the spouse filing for divorce has tried to file for divorce on the exact same grounds as the current divorce and failed, then the second suit will be dismissed due to the doctrine of res judicata.

These defenses are not available in suits for a no-fault divorce.

If marital fault has been alleged against you in a complaint for divorce, consult an attorney right away to determine whether any of these defenses apply!

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An outstanding job on my case to have custody, visitation and support decided in my home state instead of Virginia after I separated from military service.- A.E.