If Virginia goes no-fault, where does fault fit?

RICHMOND, VA — House Bill 303 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.

Fault has historically served several purposes: as a basis for filing, a source of leverage in negotiations, a factor in spousal support disputes, and, at times, a means of formally acknowledging harmful conduct. The debate surrounding HB 303 gives us an opportunity to examine how much of that remains necessary and how much of it already exists during the divorce process.

What Virginia is proposing

Virginia currently allows for both no-fault and fault-based divorce grounds, including adultery, cruelty, abandonment and felony conviction resulting in confinement. HB 303 doesn’t remove fault-based grounds immediately but creates a work group to study whether Virginia should transition to an exclusively no-fault framework.

The legislation also makes two immediate changes. First, it clarifies that adultery must occur before final separation to be used as grounds for divorce. Secondly, it revises divorce from bed-and-board procedures to allow filing immediately upon separation in circumstances where early court involvement may be needed. While these immediate changes appear narrow, 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 procedural utility.

A fault pleading may create timing advantages for a client who doesn’t want to wait through separation periods. It may alter early negotiation posture. It can shape support exposure. It may also give clients a 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 marital property based on statutory fairness factors, not punishment of a spouse who behaved badly. That means fault hasn’t always produced the dramatic financial outcomes some litigants and practitioners expect.

A spouse may fail to prove adultery sufficiently to prevail on fault grounds yet still prove that marital funds were spent on the affair. Those expenditures remain relevant in equitable distribution as waste or dissipation of marital assets.

This distinction matters. Fault as a basis for divorce and misconduct as a financial factor are not always the same issue. Even if fault-based divorce were reduced or eliminated, conduct could still matter where it creates economic consequences.

What we see in true no-fault states

As a multistate firm, we have the advantage of understanding how fault and no-fault systems function comparatively. Florida, for example, serves as a useful comparison. Divorce in Florida is based on the no-fault standard of a marriage being irretrievably broken. Yet we know that Florida family law cases remain highly contested.

While the divorce itself isn’t sought on fault grounds, misconduct remains a significant part of the broader financial and property division discussion. Our Florida family law attorneys still litigate disputes, and conduct remains relevant when it affects money, parenting or credibility. If one spouse uses marital funds to support their affair, it can still factor into equitable distribution. If misconduct, like abuse, affects children, it will still be relevant in parenting litigation.

Just as important, practitioners should be cautious about assuming that no-fault automatically produces materially cheaper litigation. In similarly situated markets with comparable average household incomes, we have not seen a meaningful difference in the overall cost of contested divorce matters simply because one state uses a no-fault framework. Further, we do not see an increased desire of parties in our no-fault states to utilize mediation to settle disputes.

So, while the divorce itself is no-fault, the surrounding disputes are not. This should caution anyone who assumes that removing fault grounds automatically creates simple 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 still need the same pretrial relief: pendente lite child and spousal support, exclusive use of a marital home, visitation schedules, protective orders, etc.

Discovery will likely not be narrowed. If there is some reason for the breakdown of the marriage, it will be just as important to explore that in discovery for purposes of equitable distribution as it was when the divorce was based on a fault ground. For example, if one spouse abandons the marriage, creating financial hardship, you will still need discovery around the financial harm of the abandonment. You will just not need to prove the factors for abandonment.

In our experience, removing fault really only impacts the number of demurrers 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 contentious parts of the divorce — disputes over support, custody and property — remain, just becoming more central. The reality is that Va. Code § 20-107.3 is over 3,400 words, and only 34 words discuss the grounds for divorce; meaning, there is still plenty to argue over.

The business of family law

There is also a professional reality worth acknowledging.

If Virginia eventually narrows fault-based litigation, some of the more emotional tactics of the divorce will no longer be impactful. What we have seen is that our attorneys must be focused on the financial impact of the actions rather than the emotional impact.

Modern clients are increasingly looking for efficiency, cost awareness and practical results. Attorneys who can truly communicate the ROI of equitable distribution factors, negotiate effectively, manage difficult personalities and guide clients toward workable, sustainable outcomes are likely to be even more valuable in a system less focused on proving blame. We have seen that the strongest firms are rarely the ones most dependent on procedural friction. They’re the ones best able to solve problems for the client.

The future of fault in Virginia

HB 303 may be viewed as a debate over whether Virginia should modernize its divorce laws. But the more practical question is where fault belongs in modern family law.

Even if Virginia eventually adopts a no-fault filing system, fault will remain part of many cases. The label might disappear from the complaint, but the conduct won’t. So, if Virginia goes no-fault, fault doesn’t vanish. It simply moves to the parts of the case where behavior still creates real legal consequences.

My view is that good lawyers don’t depend on outdated models of friction to remain relevant. They adapt. They counsel better. They solve the complex problems and help clients make sounder, more sustainable decisions. If

Virginia continues moving toward a more modern divorce framework, the strongest practitioners won’t be the ones most attached to the old system. They will be those who are best prepared for the next one.

Charles D. Hatley 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.