Spousal assault: a fault-based divorce may be your best option

On Behalf of | Nov 1, 2021 | Family Law |

Violence against one’s spouse – there are few things more abhorrent. And yet, it happens all too frequently. Your home is where you’re supposed to be safest, surrounded by those you love and trust. When violence is committed against you, by your own spouse, it can feel like the worst sort of betrayal. The trust you once had is replaced with fear and divorce suddenly becomes a necessity.

Fault-based divorce versus no-fault divorce

No-fault divorce is the most common option for most people. It happens when both spouses have grown apart, for whatever reason, and agree that they should no longer be married. This concept of divorce is generally accepted throughout the country.

However, some states, including Virginia, still allow a divorce to proceed on the basis of fault by one of the spouses, rather than by agreement of both. Adultery or prison confinement, for example, can justify a fault-based divorce. So too can assaultive behavior by one spouse against the other, referred to as cruelty in Virginia statutes.

How does fault-based divorce change the proceedings?

When one spouse accuses the other of violence, as grounds for divorce, that spouse bears the burden of proving the allegation is true. This is not the same burden of proof used in criminal cases, where a person can only be convicted if the evidence is sufficient to prove the charges against them beyond a reasonable doubt. Instead, proving cruelty in a divorce proceeding requires a preponderance of the evidence. Essentially, this mean the evidence shows it is more likely than not that the allegation is true.

When an allegation of cruelty is proven in a fault-based divorce, it can also affect the orders a court makes with respect to issues like child custody, spousal support and property division. The court is permitted to consider most anything it deems relevant when it makes decisions and issues its final divorce decree, including violence by one spouse against the other.