Work group to consider ending fault-based divorce in Virginia

That is one possibility a newly commissioned work group has been instructed by the General Assembly to evaluate.

House Bill 303, patroned by Del. Rip Sullivan, D-Fairfax County, and signed by Gov. Abigail Spanberger on April 13, includes notable changes for family law practitioners, including changes to Va. Code § 20-95 to permit immediate filing of a bed and board divorce upon separation.

But a provision tucked at the bottom of the bill instructs the Virginia Family Law Coalition and the Virginia State Bar Family
Law Section to convene a work group “to consider whether to eliminate fault-based grounds for divorce under Title 20 of the Code of Virginia, including the feasibility of transitioning the Commonwealth to an exclusively no-fault divorce system.”

The work group will be comprised of members from the Virginia Poverty Law Center, a Virginia-based domestic violence advocacy organization, the Virginia
Department of Social Services, a Virginia law school faculty member with family law expertise, appointed members of the General Assembly and “other relevant stakeholders.”

The legislature has asked the work group to return its findings on fault-based divorce and other related topics by Dec. 1.

Fairfax family law attorney Daniel Gray of Cooper Ginsberg Gray said “the remit is pretty extraordinary” in regard to the work group. He noted that the bill asks the work group to submit recommendations on reconsideration of fault behaviors as a factor in property division and the setting of spousal support.

“If the legislature were to eliminate fault behaviors as a factor in division of property or in setting support, it would constitute a sea change in divorce litigation,” Gray said. “In my opinion, it would be the biggest change to the practice since the adoption of equitable distribution.”

Julie Gerock, a partner at Maddox & Gerock in Falls Church, said that careful consideration must be taken in looking to eliminate fault-based divorce, including considering other code provisions.

“I think what we need to focus in on is that if we get rid of fault as a ground for divorce, that it’s just for the purposes of filing for the divorce,” Gerock said. “It’s not necessarily limiting how it gets used when it’s appropriate to use it, with respect to asset division or spousal support.”

Virginia Beach attorney Richard E.
Garriott Jr. chairs the Virginia Family Law Coalition. In an email to Virginia Lawyers Weekly, he said the study group is currently being formed.

“I do believe that we are at a point of transition to move Virginia toward a no-fault divorce state,” Garriott said.

Work group

Brian Hirsch, a past chair of the VSB Family Law Section and partner at Hirsch & Ehlenberger in Reston, said he has been following HB 303 “with great interest.”

“Fault-based divorce can feel like a relic of the past rather than a reflection of modern times,” Hirsch said. “In practice, there are many ways a spouse can harm or undermine a marriage that falls outside Virginia’s narrow legal grounds for fault.”

The “narrow legal grounds” referenced by Hirsch are the qualifying fault-based grounds for divorce in Virginia. Those grounds include adultery, cruelty, desertion or abandonment, and a spouse’s felony conviction.

Gray said that because of recent decisions in the Supreme Court of Virginia and the Court of Appeals of Virginia, lawyers may feel incentivized to bring these matters to litigation.

“Most lawyers feel compelled to litigate fault behaviors — even if they don’t file on fault grounds — because such behaviors can be specifically considered by the court when dividing property or assessing support,” Gray said.

Hirsch noted that in his experience, parties often pursue fault-based claims “less for legal necessity and more to assign blame, seek validation or ease the emotional impact of the breakdown.

“In many cases, this yields little practical benefit, as the other spouse can present evidence supporting a no-fault divorce, leaving the court to decide on which ground to grant the divorce,” Hirsch said.

In addition to being asked whether to eliminate all fault-based divorce grounds in Virginia, the legislature has asked the work group to consider whether to “modify or eliminate mandatory separation periods currently required under Virginia law as a precondition to no-fault divorce,” a request that was noteworthy to Gray.

“Many jurisdictions, such as Maryland, have eliminated or substantially shortened the waiting period required for spouses to file for divorce,” Gray said. “This would also constitute a very significant change in the practice of Virginia divorce law as it currently exists.”

When seeking fault-based divorce, Gerock noted, parties can file for divorce immediately upon separation. That differs from a no-fault divorce under Virginia’s current system, where a couple has a one-year separation requirement before divorce can be filed.

“Under our current system, a fault-based divorce has more remedies available to the spouses than a couple who has experienced irreconcilable differences,” Gerock said.

That means that in cases of no-fault divorce, Gerock noted, families often seek relief from juvenile and domestic relations courts, courts not of record, then have to litigate similar issues in the circuit court that handles the divorce.

“So, you have two families, and the only difference between them is one has fault in the breakdown of the marriage and one doesn’t, but how they access the courts are very different,” Gerock said. “And often, when there isn’t fault, they’re in a situation where they’re having to litigate at least part of their cases twice because they start in the juvenile court, not a court of record.”

The work group has been further instructed to evaluate the extent fault should be considered in equitable distribution of marital property, protections for domestic violence survivors in no-fault proceedings, access to justice considerations and review of comparable no-fault divorce statutes in other states.

The result is a sweeping request for a work group that is still being assembled to complete in the next six months.

“A study deadline of Dec. 1, 2026, is very ambitious for a project of this size and import,” Gray said.

Garriott echoed the sentiment.

“Although we have a December deadline, given the scope of the study, I am not sure we will be able to complete a full study prior to that date,” Garriott said.

Other changes

Apart from commissioning the work group, HB 303 contains changes to Virginia
divorce law that family law practitioners found noteworthy.

Among them is an amendment to Va. Code § 20-91, rephrasing a portion of the code to permit a divorce from bond of matrimony “for adultery that occurred prior to the date of the last separation of the parties.”

The current law does not specify the adultery had to occur prior to the parties’ separation. Gerock recalled serving as counsel on a case where a party was barred from spousal support solely due to a post-separation affair.

“I don’t like adultery being used as a financial weapon necessarily, and what I mean by that is along the lines of adultery being a bar to spousal support,” Gerock said. “I think that’s very archaic, and frankly paternalistic, and has typically been utilized and weaponized against women.”

Gray said the change is important to consider for attorneys who find themselves in similar cases, where the present statute creates the technicality that a post-
separation adultery can bar alimony.

“With this new change, support recipients can pursue relationships after separation and before divorce with less concern about the impact on an alimony award,” Gray said.

The bill also amends Va. Code § 20-95 to permit immediate filing of a bed and board divorce upon separation, which Gray noted would grant immediate access to circuit courts and pendente lite motions relief upon separation.

“It is a powerful new tool for lawyers looking to get into the circuit court with no waiting period,” Gray said.

That ability to file upon separation “is a big change in the law,” Gerock said.

“The takeaway is that it puts all spouses and marriages in which there’s been a separation on equal footing,” she noted. “I think that’s really important for families, particularly if a spouse is really worried about assets disappearing or if tensions are high in the home, but it doesn’t rise to the level of fault.”

“If the legislature were to eliminate fault behaviors as a factor in division of property or in setting support, it would constitute a sea change in divorce litigation. In my opinion, it would be the biggest change to the practice since the adoption of equitable distribution.”

— Daniel Gray, Cooper Ginsberg Gray