Law Talk Episode 10: Fault-Based Divorce in Virginia

In this episode of Law Talk, Jacob and Jonathan discuss the ins and outs of filing for a fault-based divorce in Virginia!

Jacob Tingen: Okay, welcome to Law Talk with Tingen and Williams. We’re back another week with Jonathan Jordan, who is the partner at Tingen and Williams over our family law practice. Last week, we talked about a number of issues, including child custody and divorce. Today’s episode of Law Talk is going to focus on what?

Jonathan Jordan: Fault-based divorce. We kind of skipped that last time.

Jacob Tingen: Yes. That’s kind of an important area of family law and practice that we wanted to touch on. Also, keep in mind that this is a live program, so if you’re listening to this during the Wednesday at 11:00, you can go ahead and give us a call in at 804-477-1720 or you can make a comment directly on Facebook and we will do our best to get back to you and answer whatever question you’ve got. All right, Jonathan, let’s jump into fault-based divorce. Difference between fault-based and regular divorce?

Jonathan Jordan: Well, to continue on or to maybe repeat a little of what we covered last week, the Virginia Scheme basically has two divisions. One is no fault. Basically, if you’re separated and living apart for the required amount of time, you can just get a divorce based on that. Otherwise, you have to go under some sort of fault saying the other person, or maybe you’re the person who has the fault, but you’re saying that somebody caused this marriage to end and we’re going to try to make them pay for it in some way.

Jacob Tingen: Okay, so is there a downside to a fault-based divorce? Is there a reason to go for a no fault versus a fault-based?

Jonathan Jordan: Yes, there is. Typically, fault-based, it makes it more expensive. It makes it a longer process. Essentially, most people don’t want to have that on their record. Typically, the fault grounds are also some sort of crime in Virginia or some sort of allegation of wrongdoing. If you don’t want that on your record, you might want to put up a bigger fight, or you just don’t want to be known as a person who did that.

Jacob Tingen: Let’s talk about that, because I don’t think a lot of people realize. You wouldn’t get a criminal conviction from a fault-based divorce allegation, would you?

Jonathan Jordan: Not necessarily, no. A criminal thing would have to be in criminal court. You’d have to be charged with a crime and the commonwealth attorney would have to bring the charges, and that’s a separate criminal proceeding. However, it’s possible that the evidence used in the divorce proceeding could also later be used against you in the criminal proceeding.

Jacob Tingen: Right, and that’s because adultery in Virginia is technically a crime, correct?

Jonathan Jordan: Yes, adultery in Virginia is. Most people don’t think it is, but it’s a class four misdemeanor. It’s as low as you can go and still be a misdemeanor. It does not come with a possibility of jail time, and frankly, the fine is only I think $250, but it’s still a criminal conviction. If you have, for example, some sort of security clearance or anything like that, a criminal conviction is not good for you.

Jacob Tingen: Yes. It’s interesting. I don’t know if that law’s in the books unanimously across all 50 states, but definitely here in Virginia. That’s something to think about in a divorce proceeding is would you want that on a public record, the elements of an adultery charge or claim. Let’s talk about some of the other reasons that a divorce could be a fault-based divorce. What else do you have?

Jonathan Jordan: Well, in Virginia, if you look at the code, those following along, it’s section 20-91 in the Virginia Code. There’s space under A, category A. There is I guess nine different ways to get a divorce. Four of them have been discontinued to repealed, so they don’t exist anymore, and one of them is no fault or just living separate and apart.

Really, there’s three major areas where you can get a fault-based divorce still in Virginia. The first one is adultery, sodomy, or buggery. Basically, these are the sexual offenses against the marriage. If you’re having some sort of sexual act with somebody outside the marriage and the innocent spouse hasn’t condoned it in any way, then that’s a grounds for divorce and that’s a grounds for immediate divorce.

We talked about the reasons why you would not want to deal with fault-based divorce because it tends to be more expensive, but one of the reasons you might want to go with it is because it’s immediate. There is no wait time to file for fault-based divorce based on adultery, sodomy, of buggery.

Jacob Tingen: Right, whereas there is a wait time when it’s a no fault based divorce. Separation is the only reason?

Jonathan Jordan: Yes, separation, living apart. You’d have to be living apart either six months or 12 months depending on whether you have children and whether you have a property settlement agreement.

Jacob Tingen: What’s that Virginia Code section again for what these reasons for divorce are?

Jonathan Jordan: Oh, section 20-91.

Jacob Tingen: 20-91, okay. Grounds for divorce for bonded matrimony. Okay, keep going. I’m listening.

Jonathan Jordan: Just so you know, the standard approving adultery, sodomy, or buggery, that’s a very high standard. The court uses a standard of clear and convincing evidence. I’m trying to remember what percentage clear and convincing would be. It’s way up there.

Typically, a trial in the civil courts in Virginia, it’s just by a preponderance. That means 51% likely a judge believes one side versus the other and they’ll make the ruling. Clear and convincing means basically, let’s say you have some very incriminating evidence, like let’s say husband goes to a hotel room with a strange woman. They stay the night. There’s photos of them hanging out the next day or a testimony of them hanging out naked or in bathrobes the next day or something like that.

Pretty much, if they have any sort of valid reason of why they would’ve had to take their clothes off other than adultery, the court’s going to seriously consider that and it might not reach the standard of clear and convincing evidence. Clear and convincing is something short of the criminal standard of beyond reasonable doubt, but well above more probable than not. Maybe, I don’t know, 70%, something way up there.

Jacob Tingen: Yes, so I just quickly Googled it. Yes, you’re right. Preponderance of the evidence is 51%, pretty standardized that that’s what it means, more likely than not. Clear and convincing is somewhat shorter than 100% but more than 51%, so it’s just somewhere in there, and we have to show that it is much more likely than not to have happened. That is the standard clear and convincing, and whatever that means is why people need to hire attorneys.

Jonathan Jordan: They have to convince a judge that that happened, and frankly, that’s going to cost money. It’s going to take investigative skills, and you might not be able to do it.

Jacob Tingen: Now, convincing a judge, just for people who have never been in court and those kinds of things, divorce, jury trial?

Jonathan Jordan: No, they don’t have jury trials for divorces.

Jacob Tingen: The judge is the finder of fact. He’s the one making the decisions.

Jonathan Jordan: Yes, or sometimes the judge will appoint somebody else to do it. I’m trying to think of the term, but sometimes they’ll assign somebody to go in there and investigate the case.

Jacob Tingen: When there are lots of facts, because divorce is not fact complicated, right? It is what it is or it isn’t. That’s about it, right?

Jonathan Jordan: Yes.

Jacob Tingen: Yes. Well, let’s keep going on the reasons that people might get a divorce.

Jonathan Jordan: The next reason, I’ve never had it personally. I’ve never had a client come in with this one, but if you’re married and your spouse receives a felony conviction, and that’s a conviction of where they’re sentenced to more than 12 months in jail or more than a year in jail and they’re actually confined for the time of their sentence, that’s a felony conviction, and that actually in itself can be a grounds for immediate divorce. There’s no wait time. It has to be a conviction. It can’t be just an accusation, but if your spouse suddenly get convicted of a felony, you don’t have to wait. That would be fairly easy to prove. You show the conviction record and you’re in.

Jacob Tingen: Now, would that include if the sentence is suspended so the person doesn’t actually spend any time in jail?

Jonathan Jordan: I’m trying to remember. I don’t remember. I think they actually have to serve part of the sentence for that to count.

Jacob Tingen: Yes. I’m actually reading the statute here. I pulled it up. I’m following along, so sentenced to confinement for more than one year and confined for such felonies subsequent to such conviction, so I guess you’ve got to have some kind of [crosstalk 00:09:35].

Jonathan Jordan: I think there has to be som jail time. I don’t know that it has to be the whole more than one year deal.

Jacob Tingen: What’s your sense, if you took that to a court and you said, “Well, they were convicted but the entire sentence was suspended,” do you think a judge would allow that spouse to [crosstalk 00:09:46]?

Jonathan Jordan: I don’t think so. The plain language of the statute says they have to be sentenced for something. I haven’t looked up the case law on it, and I know there has to be some case law on it. For that one, it’s never come up so far for me, and I’m not sure. Typically, if somebody’s convicted of a felony, they’re going to serve time. There’s no point in doing that.

Jacob Tingen: That’s a good point. Most felony convictions will have a mandatory minimum. Is that right?

Jonathan Jordan: Yes. Even to be a felony conviction typically … I don’t know the answer to that. Some do. At least some do. I’m trying to think if they all do.

Jacob Tingen: To be a felony, it’s a more serious crime and the likelihood that there would be zero jail time is [crosstalk 00:10:27].

Jonathan Jordan: Yes, that’s very unlikely to be no jail time. I’m trying to think of exceptions, and I don’t have a lot of them. Some crimes have mandatory minimums and some of them, they give the judges a lot of discretion, and my guess is not all of them have a mandatory minimum.

Jacob Tingen: Well, okay, so if you’re listening in, this is Law Talk with Tingen and Williams. We’re here every Wednesday at 11 AM. You can call in or just type in a comment on Facebook and we’ll answer your question if we can get to it.

Today we are talking about fault-based divorce and just getting some information out there. Last week we were talking about family law in Virginia generally, and we talked about child custody and child support and divorce generally, so today we’re getting into a little more of the nitty gritty of fault-based divorce. We’re in Virginia Code section 20-91 and just reviewing what are the reasons for fault-based divorce.
Jonathan Jordan is our partner here at the firm over family law and he’s walking us through this and teaching us a little bit about fault-based divorce. Jonathan, what are some other reasons that someone might get a fault-based divorce?

Jonathan Jordan: Well, the other last category is cruelty. The cruelty is reasonable. It can include a variety of things. For example, causing reasonable apprehension of imminent bodily harm, like some sort of threat or intimidation or attempt to hurt your spouse, a willful desertion or abandonment of spouse. If you’re just like, “Whatever,” and you leave the home without a just cause, that could also be counted under the cruelty area.
The cruelty grounds for divorce is different than the first two. The first two, some sort of sexual act outside the marriage or a felony conviction with active jail time, you can immediately file for divorce under a fault-based grounds. As soon as it happens, you can go to the court and file the paperwork, but with the cruelty, you actually have to be separated for a year before you can even file. There is a year delay, and that might take some of the incentive for using this divorce grounds if there’s a 12 month cooling off period.

Jacob Tingen: Right. Why is there a cooling off period in instances of cruelty?

Jonathan Jordan: Well, first off, relationships are very complicated. We know this. We’ve heard of battered spouse syndrome where people are in these relationships, or frankly, a lot of people, when they come into a marriage, the expectation or at least it has been that this is going to be forever. This is you and I together for the rest of our lives, and suddenly they have to seriously consider, and the state wants them to seriously consider if you’re going to break up a marriage, you should think about it. It’s a cooling off period. Do you really want to break off this marriage? Think about it. That’s what the waiting period on the no fault grounds, as well, or the living separate and apart. It’s a cooling off period. Do you really want to terminate this? Think about the consequences.

The first two, the general assembly, the state is saying, “You know what? These are so egregious to surviving a relationship that we’re just going to let you move forward right away if you want to. Your marriage probably won’t survive this,” whereas the other ones, it’s like, what is cruelty? You lose your temper and you scream. Raised tempers, is that really a reason to terminate your marriage? There’s time to think about it and maybe you can get counseling, maybe you can fix it.

Jacob Tingen: Right. Now, just in terms of if you do need to get a divorce, and we’ve mentioned this before in past episodes of Law Talk, but we do take domestic violence very seriously. It’s an issue we deal with quite frequently and are familiar with. Is this is one of the reasons that you’re looking for a divorce, get help. Come talk. Get a consult. Discuss your options.

While Jonathan mentioned it can be tricky to prove cruelty or what exactly do you need to show, that’s just one more reason to talk to a lawyer to figure out what kinds of evidence or things that you should bring to a divorce case to make sure that this goes the way you need it to go. This is definitely a ground worthy of being considered for fault-based divorce, along with the other grounds that we’ve mentioned.

Jonathan Jordan: Yes. This is actually a very common ground for divorce. I wasn’t giving a personal opinion whether I thought it was more or less worthy. I’m saying the general assembly in Virginia has said you do not get an immediate divorce for this grounds, and I’m guessing as to what their reasoning. I don’t know. You’re not required to suffer threats or intimidation or abuse or cruelty from your spouse. You can separate immediately and then you can file for divorce later.

Jacob Tingen: Right. Yes, so if that’s your divorce scenario, please talk to a lawyer. Get help. Let’s talk about then the process, fault-based divorce. How does it differ from a no fault divorce and how does someone go about making this happen?

Jonathan Jordan: Well, the process in a lot of ways is similar. In some ways, it’s different. For example, a no fault divorce is typically also going to be what we call an uncontested divorce. An uncontested divorce is meaning the parties don’t have anything to fight over for whatever reason, either because they don’t own anything or they’ve already made prior arrangements or they made a property settlement agreement. They’ve settled all the outstanding issues that need to be taken care of to split their lives. There’s nothing left to fight over. They can just move forward.

Jacob Tingen: That’s the uncontested scenario.

Jonathan Jordan: Yes. A no fault divorce can also have elements of that. When we say no fault, we’re taking a major issue out of play, but we’re not taking all issues out of play. A no fault divorce actually could still have lots and lots of things to fight over. For example, alimony, child support, custody, visitation, dividing up the property. We call it equitable distribution here in Virginia. You could still fight over any one of those or all of those in a no fault. No fault takes the reason for the divorce off the table.

Jacob Tingen: Just to be clear, you can have a no fault and uncontested divorce. You can also have a no fault and contested divorce.

Jonathan Jordan: Yes.

Jacob Tingen: You can also have a fault-based contested divorce, and I assume in theory, you can have a fault-based uncontested divorce if one of the parties was like, “Yeah, totally committed adultery here. Let’s just get this over with. I’m not going to fight this.”

Jonathan Jordan: Yes. I’ve actually taken some of those cases where the party has just admitted that they didn’t want to spend the time or money. They knew the proof against them was strong. They weren’t going to get out of it, so they just yielded on that issue and said, “Let’s make a deal,” and the rest of it.

Jacob Tingen: Okay. How does that affect things procedurally, no fault, fault-based, uncontested, contested? What are we looking at?

Jonathan Jordan: Before I answer that question, there’s one more area I think we should jump into very briefly.

Jacob Tingen: Mm-hmm (affirmative).

Jonathan Jordan: I talked about under cruelty, the reasonable apprehension of bodily hurt, willful desertion or abandonment, those are the areas under cruelty. I said there’s a one year waiting time to file, but Virginia actually offers a separate structure for divorce in those circumstances, and they call it divorce from bed and board. It’s actually a formal court proceeding that will separate your lives and you go in there and you prove fault. You just can’t finalize this process until after a year has passed because there’s a waiting year.

A divorce from bed and board could work potentially for people who have religious reasons where their church or whatever won’t let them actually get an absolute divorce, or it could be that they just want to separate their lives but they’re perfectly content to stay technically married to each other, and there might be some tax benefits of remaining married to each other. As long as they don’t intend to remarry, they don’t feel the need to absolutely terminate the marriage. They just separate everything else except the status of the marriage.

Like I said, divorce from bed and board allows you to file immediately. It just cannot be completed as an absolute divorce until after a year. I just want to be clear. I say completed. You’d merge it into an absolute divorce later after the statutory period by a separate filing if that’s what you want, or you leave it as a divorce from bed and board indefinitely if you’re okay with that.

Jacob Tingen: Great, great. If you’re just listening in or just seeing this on Facebook, this is Law Talk with Tingen and Williams. We’re here every Wednesday at 11 AM. You could call in at 804-477-7720 and get free counsel, or if you make a comment on Facebook live here, we’ll see that comment, we’ll answer it.

In the meantime, we will be discussing a number of issues relating to divorce, fault-based divorce more particularly in Virginia, and we’ve been looking at the Virginia Code, Virginia Code section 20-91 and 20-95. We’ve just been looking at those code sections to talk about grounds for divorce and divorce from bed and board. Now we’re going to change gears. Are we ready to change gears?

Jonathan Jordan: Yes, we are.

Jacob Tingen: All right, so we’ll change gears to the procedural aspects and what we have to look forward to, if you can call it that, when it comes to Virginia divorce and the different scenarios.

Jonathan Jordan: The first issue procedurally in a divorce is do you have a grounds you can prove. We talked about that generally. You can’t bring a case before you have grounds to bring a case. You’d have to say, “I’m bringing a case under one of these areas and I’m going to get my evidence for that.”

The next thing is you have to make sure Virginia can actually accept your case. There’s something called jurisdiction. It’s the court’s ability to hear your case. Now, the court definitely has the ability to hear a divorce case because the law gives them that ability, but they can’t hear your case unless somebody, one of your spouses, has lived in Virginia for the six months immediately prior to you filing the action. Let’s say one spouse lives in West Virginia and and the other one lives in Texas and they don’t have contact with Virginia. Well, Virginia can’t give you a divorce. Those are some things that you need to clear the hurdle.

There’s an idea called venue. Basically, if you’re in Virginia and you have residency here and you’re good to go, which court do you actually bring your case in? Virginia has a statute for that, as well.

Jacob Tingen: There’s a statute for everything.

Jonathan Jordan: It says if you bring the case in the county or city where the parties last lived together or where the defendant currently lives if the defendant lives in Virginia. That’s a typical one. If the defendant doesn’t live in Virginia and they never lived together in Virginia, there’s other options that are available, but at least one of them has to live in Virginia for six months.

Jacob Tingen: Yes, and that’s just to establish jurisdiction over a divorce case.

Jonathan Jordan: Exactly.

Jacob Tingen: Now, you frequently deal with cases where people got married outside of Virginia getting the divorce in Virginia, right? That’s extremely common?

Jonathan Jordan: Oh yes, that’s very common. It’s not a problem at all, so long as somebody lives in Virginia and has for the last six months.

Jacob Tingen: Yes. I know that that’s an open question that I’ve gotten a lot, and I don’t personally do the family law cases, but that is an extremely common question. The answer is a resounding of course, you can still get a divorce even though it wasn’t solemnized here. In terms of actually filing and choosing the court to file in, what else do we have to think about when it comes to fault-based divorce in Virginia?

Jonathan Jordan: Probably the thing to know about divorce, it’s something that people can do by themselves if they’re really committed to it, but it’s a tricky process. Even the simplified, no fault, uncontested whatever, I’m trying to think. There’s something around 10, 12 documents that need to be filed in a certain order and steps that have to be jumped through.

Jacob Tingen: Each court is a little bit different as well, on top of all of that, right?

Jonathan Jordan: Oh yes. Some courts requite things that other courts don’t, but it’s kind of a tricky process. It’s easy that you say, “Oh, I can do this.” Sometimes there’s self-help sites and things like that, but it’s actually kind of a tricky process and a lot of people try and fail to do it by themselves. They’ll come to me and say, “Can you fix this?” Yes, I can fix it. Everything’s fixable typically but it’s kind of messy. Sometimes you have to start the whole case basically from the beginning.

I don’t know that we want to go through all the specific things, but there’s three basic actions in a divorce cases. I can tell you that. That’ll keep it pretty simple. The first action to starting a divorce case is you actually write up a complaint, you pay a filing fee, and you deliver this packet to the proper court. In that complaint, you have to allege all the grounds for the case you’re trying to bring. If you miss any, your complaint’s going to be inadequate and it won’t be a valid suit. It’s subject to being dismissed. After the court accepts it, they’ll give you a case number and then your case will be put onto the Supreme Court website. You’ve got an actual case.

Step two is there’s something called Service of Process. That’s a fancy word that says you’ve got to give legal notification to the other side. This is a lawsuit. You don’t generally get to do lawsuits against people without going through the right steps of notifying them that there’s an action against them. Their rights are in jeopardy. They have a right to be notified properly, so that’s Service of Process.

After that, the steps vary depending whether it’s being fought over or not. The other side would have a right to answer your complaint. You would have a chance to respond to their answer or any new allegations that they bring up potentially, and then you might move onto a phase of discovery.
That’s a separate issue, whether it’s going to be contested or not, but in the end, let’s say you have all the proof you need. You still have to submit all the final evidence to the court and there’s a form for vital statistics. There’s confidential addendums where you have to provide all the relevant information. You have to submit a proposed order, so it’s actually a lot of documents and it’s a process that’s easy to get it wrong.

Jacob Tingen: Right, right, and that’s the advantage to hiring a lawyer. If I’m getting a divorce, and I’m not, but if I were, for people listening out there who are going through this difficult time in their lives and need to find a divorce lawyer, what are some important questions that they should ask when it comes to these issues, if they’re trying to figure out fault-based versus no fault, contested versus uncontested? What are some things that come up in that first conversation that you have with people? I know that perhaps the most common question is, “How long is this going to take? How much is it going to cost?” Let’s just talk about some of those other things, too.

Jonathan Jordan: Well, let’s say, for example, let’s put adultery on the table. In a typical consultation I have on an adultery case, a lot of times, there’s a lot of animosity there. There’s a lot of hurt. There’s a lot of betrayal. “This person destroyed our marriage and was unfaithful. They promised we’d be together and they just went off and destroyed everything, and I want to make them pay for it.” That’s probably the most common feeling that I have to face, and then the next question is, “How much do you want to pay to make them pay?”

Jacob Tingen: Right.

Jonathan Jordan: Really, if the marriage doesn’t really own anything and there’s not really anything to fight over, do you want to make them pay just for the sake of putting that adultery next to their name in public records, or do you just want to get out of this and move on with your life? That’s a conversation we have. I tell them. It’s an expensive lesson to teach them. It’s going to take some time and money to prove adultery and we might not be able to do it depending on what the evidence is available.

Jacob Tingen: Yes, because you’ve got to get the clear and convincing.

Jonathan Jordan: Exactly. That’s a thing where you discuss how bad do you want to do that, what are you willing to pay to do that, is that good for you, is that good for your family.

Jacob Tingen: Yes, because there are easier ways to get divorced. That’s kind of what it comes down to. Now, let’s talk about just other considerations. Are there people who come in and they’re just like, “Yeah, I don’t think this is going to work,” just people who don’t really open up or don’t feel comfortable? How does that work? How important is the attorney client relationship in family law matters?

Jonathan Jordan: Well, it’s pretty important, the client and the attorney. It goes both ways. You have to trust each other. You have to believe the attorney is going to … Well, let me back up here. In Virginia, when we say attorneys, attorneys are attorneys and counselors at law. Part of an attorney’s job is to tell our clients the legal ramifications and possibilities and the other side of it is we’re counselors, too. We have to be able to tell people, “I think that’s a bad idea. I think you should not do that.”

I do it all the time, and sometimes, I’ve had consultations where the client was, “No, I really want to do that,” and I go, “I really think it’s a terrible idea,” and maybe they’ll go find an attorney that thinks it’s a good idea. That’s always their choice, and they really should find an attorney they’re comfortable with.

Jacob Tingen: Yes, and where they can support each other, because I also have clients where I’ll advise them to do something and then time and time again it has happened where my advice was ignored and things did not go so well. Trust your attorneys.

Jonathan Jordan: Divorce or these family law matters are so emotionally involved, so draining, so taxing, that a lot of times, I say this jokingly, but the idea is if you’re involved in one of these matters, and it’s a live matter. Let’s say you just broke up. If you’ve been separated for 10 years and we’re just putting a period on the end of the relationship, it’s no big deal, but if you just broke up, everything is so raw. The emotions are so raw. You’re fighting over custody. These are your children. This is control of your children, who’s going to be with them.

Everybody’s insane. The parties are out of their minds. They do things against their own interests regularly despite an attorney saying, “You really should not do that. This is not good. It’s not good for the children. It’s not good for anything.” They’re just like, “I really want to do that because I’m really, really, really angry.”

Jacob Tingen: That’s just one more reason to hire someone you can trust and someone who can be a voice of reason. I think it’s important to realize that when you get divorced, hopefully it’s only one or a few times with you, but with the attorney, it’s many, many times they’ve been through this process and so you can trust their advice and their counsel and their experience.

I think that’s about it for Law Talk today. Thanks again. If you are just listening in, this is Law Talk with Tingen and Williams. You call in Wednesdays at 11 for free legal consult, 804-477-1720. We’re here every Wednesday at 11 AM. You can also make comments on Facebook live. Each week we pick a new topic and we just talk about it.

This program is also made available as a podcast. It’s available on iTunes and Spotify and a zillion other places. Look us up on our website at Listen to the podcast. Jonathan Jordan will be back to talk about family law in the future on this podcast and on this Facebook live program. Thank you so much for listening in and have a good day.

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