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Responding to a Fault-Based Divorce Complaint in Virginia

By November 7, 2022Divorce

You may be overwhelmed when you receive a divorce complaint. Sometimes we expect them, and sometimes they just come out of nowhere.

Our job as Virginia divorce lawyers is to help you respond appropriately. We have to act quickly! We have a limited amount of time (3 weeks maximum – and sometimes less) to draft a response, review it with you, and get it to the court.

From our team at Slovensky Law, here’s our process of helping you respond.

How to respond to a Fault-Based Divorce Complaint in Virginia

We have to respond to the allegations. 

It’s easy to get indignant about them and explain yourself – but it won’t help us help you. We need “just the facts, ma’am.” 

Some lawyers write nasty divorce complaints just to get a rise out of you. Don’t give them the satisfaction!

Besides, we don’t think Virginia judges like it very much when people get nasty, so they may not be helping themselves in the long run.

Once you’ve taken a moment to pull yourself together and are able to think objectively about the situation. . . 

Here’s what we need you to do:

  • Using a numbered list, look at each line of the Divorce Complaint.  

Use the same numbering as in the Complaint, and tell us whether or not the item is: 

1) Absolutely true,

2) Not True, 

3) Not something you know, or 

4) (without being “defensive”) A brief description of why you don’t think you can answer that it is Absolutely True or Not True. (This is for your attorney, NOT for the Court!).

If the not true item is something like a date, please tell us the correct date. Now is not the time to send us a multi-page analysis of your spouse’s filing. Get this list to us as soon as possible – preferably within 2-3 days.

2. We need you to read up on grounds for divorce in Virginia because we want to help you draft a counterclaim. 

The fault grounds for divorce in Virginia are:

  • adultery – If you believe this applies, you must have more than a suspicion of adultery (or sodomy, which is oral or anal sex). Absent extraordinary other circumstances, you will need to identify the time and location of the adultery as well as the person with whom it occurred. 
  • cruelty – Your spouse has been mean – not just people-who-don’t-get-along mean, but unbelievably mean and nasty. This normally requires either a major incident of physical abuse or more than a single “sally of passion.” In truly extreme and rare circumstances, mental abuse may be sufficient.
  • desertion/abandonment – Your spouse just up and left out of nowhere, against your wishes and not because of anything you did (like your adultery, for example), and they did so to end the marriage. We can also plead constructive desertion if they still lived in the house, but “zoned out” and stopped participating in marital life (sex, household chores, working, taking care of the children). 
  • felony – This one is very rare but occurs when your spouse has been convicted of a felony and sentenced to a year or more of confinement.

You do not necessarily have to file a fault-based response. And if you have already been separated for a year, you can also file based on a one-year separation.

What are the advantages to a fault-based filing?

It depends. 

If you go all the way to trial and prove a fault ground, the judge might take that into consideration in asking the other party to pay a portion of your attorney’s fees (or to make you pay less of their attorney’s fees than they otherwise would). 

If the fault is pretty bad – like your spouse put you in the hospital because of abuse, or spent all your savings on a new lover – you might get more in the divorce when all is said in done. But we don’t typically see fault as a major factor.

Finally, the one time that a fault-based claim should almost always be pursued is if you are the financially-advantaged party and your spouse committed adultery, in which case this can eliminate or reduce any spousal support you may otherwise be ordered to pay.

What happens next?

As soon as possible, we want to know which of these claims may apply to you, and what facts you think support that. Be specific with dates, etc., and write about 500 words to help us to figure out the best way for you to proceed.

Here’s what we are going to do AFTER we receive your response:

  • Analyze the requests for relief in the Complaint and strategically determine how to respond- including which new legal issues we should raise.
  • Draft your answer.
  • Analyze what offensive position is likely to get you the best result.
  • Draft your counterclaim (if any).
  • Determine if it is advantageous for YOU to request a court hearing immediately if one is not already requested, and determine if we should offer a settlement.
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