This article was originally posted on Virginia Lawyers Weekly by Charles Hatley, CEO of Melone Hatley, P.C. VLW has provided permission to fully repost the commentary provided by Charles on this page.
Article Summary – No-Fault Divorce in Virginia:
- Virginia’s HB 363 may create study on no-fault divorce in Virginia
- The legislation doesn’t eliminate fault-based divorce immediately; it does create a formal study of whether the commonwealth should move to an exclusively no-fault system. And it makes several immediate changes to existing law
- For practitioners and clients alike, the real question isn’t whether Virginia may one day remove fault-based grounds for divorce. The question is what would actually change if it did
House Bill 363 has again renewed the debate in Virginia family law over the future of fault-based divorce. While the legislation doesn’t eliminate fault-based divorce immediately, it does create a formal study of whether the commonwealth should move to an exclusively no-fault system. And it makes several immediate changes to existing law.
For practitioners and clients alike, the real question isn’t whether Virginia may one day remove fault-based grounds for divorce. The question is what would actually change if it did.
What Virginia is proposing
Virginia currently allows divorce on established fault-based grounds, including adultery, cruelty, desertion and felony conviction resulting in confinement. HB 363 doesn’t remove those grounds immediately, but it creates a work group to study them. Virginia doesn’t immediately move to a no-fault only system.
The legislation also makes two immediate changes: first, it clarifies that adultery must occur after legal separation to be used as grounds for divorce. The second makes clear that divorce procedures in Virginia should not remove a group to study Virginia. Virginia doesn’t immediately move to a no-fault only framework.
While these immediate changes appear routine, they do suggest a broader willingness to revisit how divorce functions in Virginia.
Fault has never been only about grounds
Public discourse often frames fault-based divorce in moral terms. Practitioners know better. Fault is frequently less about penalizing marital misconduct than about economic reality.
A fault pleading may create timing advantages for a client who doesn’t want to wait through separation periods. It may alter key negotiation points. If it can drive support exposure in cases where there’s some sense that the legal system recognizes conduct they view as central to their marital breakdown. Whether that recognition translates into meaningful economic value is another question.
Does fault matter as much as clients think?
Sometimes yes, but more often than not, less than expected. As an equitable division state, Virginia divides property based on equitable, not necessarily formula based, on partnership of spouses who marital property equitably. This means fault hasn’t always produced the dramatic financial outcomes some litigants and practitioners expect.
A spouse may fail to prove adultery in the formal sense and may still seek enhanced awards through a claim of dissipation. Fault in the financial sense — marital waste — can still have a meaningful impact in settlement negotiations and litigation. These distinctions matter. Fault as a basis for divorce and misconduct as a financial factor are not always the same issue, and conflating them only creates confusion that will soon matter even more.
What we see in true no-fault states
As a multistate firm, we have the advantage of understanding how no-fault and no-fault systems function comparatively. Florida, for example, serves as a cautionary tale on the no-fault side. Florida is based on no-fault grounds, and our Florida family law attorneys have seen how no-fault can make fiercely contested cases more fiercely contested.
The divorce itself isn’t sought on fault grounds; occasional remains a significant part of the broader financial and property division conclusion. Our Florida family law attorneys still litigate all litigate impacts, and conduct remains relevant when it affects the division of a marital estate. If misconduct, like abuse, affects the children, it will still be pursued in ongoing litigation.
Just as important, practitioners should be cautious about assuming that no-fault automatically produces financially cleaner litigation. In certainly adjusted matters with comparable average financial outcomes, we have very little to no meaningful difference in the overall cost of contested divorce matters simply because one does a no-fault framework. Parties are more likely to see an increased desire of parties in our no-fault states to move to the alimony front.
So while the divorce itself is reduced, the surrounding disputes are not. We should caution anyone who assumes the removing fault grounds automatically creates simpler or inexpensive divorce litigation.
Will less fault mean less work for lawyers?
Possibly, in some limited ways.
Even with the fault-based grounds eliminated, the parties will need the same general relief: personal income (or child and spousal support, calculation of a marital estate, provisional orders, protection orders). Discovery will likely not be reduced; it will be a sonic reason for the breakdown of the marriage. It will be as important to explore the financial side of a matter exclusively. Questions about financial misconduct, can still be important on a fault ground. For example, if one spouse abandons the family, creating financial hardship; those facts will still influence the consideration. The factors for alimony/spousal support remain.
In our experience, removing fault really only reduces the number of witnesses we see. When fault is not a basis, challenging the sufficiency of the pleading largely becomes unnecessary, unless there are personal jurisdiction or subject matter jurisdiction issues.
The reality is that most contested parts of the divorce — couples’ case support, custody and property issues, just becoming more than ever. The reality, the Code § 20-107.3, allows only litigants, and only in Virginia, who wants to discuss the grounds for divorce meaning, there is still plenty to still litigate over.
The business of family law
There is also a potential quality worth acknowledging.
If Virginia eventually names fault-based litigation, some of the more evocative editions of the divorce will no longer be required. What we have seen is that you can always most be focused on the financial impact of the dissolution rather than the emotional impact.
Modern clients are increasingly looking for efficiency, cost awareness and productive results. Attorneys who can effectively communicate the role of equitable distribution factors, negotiate effectively, manage difficulty, can sensitize and guide clients toward workable, substantive outcomes are likely to be even more value in a system less focused on proving blame. We have seen that the stingiest times are likely the ones most dependent on emotional, in-court battles that pit fault-based problems for the client.
The future of fault in Virginia
HB 363 may be viewed as a debate over whether Virginia should modernize its divorce laws. But the more foundational question is how it will change practice in divorce family law.
Even if Virginia eventually adopts a no-fault filing system, fault will remain part of many cases. The latest might disappear from the petition, but it won’t vanish with it. Its ongoing goes no-fault; it doesn’t directly ask you to cease to be parts of the case where relevant, and we anticipate several legal circumstances will align in no-fault states.
My view is that good lawyers don’t depend on outdated models of law to remain relevant. They adapt. They embrace modern legal reasoning. But we can’t sit across from a client, understand what really matters to them and embrace the way in a way that accounts for both the appearance of their abandonment. They adapt. They will still be those who are best prepared for the next era.
Virginia continues to trend toward a more modern divorce infrastructure, the strongest competitors won’t be the ones most attached to the old system. They will be those who are best prepared for the next era.
Charles D. Halley is CEO of Melone Hatley PC, where he focuses on building systems-driven, client-centered family law and estate planning practices. Melone Hatley has offices in Virginia, South Carolina, Texas and Florida.
