Cruelty and Divorce in Virginia

Cruelty is a commonly used ground for divorce in the state of Virginia. This webpage provides an overview of cruelty in Virginia divorce, its legal implications, and the process involved.

Understanding Cruelty in Virginia Divorce

Definition of Cruelty: Acts of physical violence and conduct that endanger the life, safety, or health of one’s spouse will constitute cruelty. Abusive language, humiliating statements, and repeated neglect can also constitute cruelty. While cruelty is typically proven by evidence of a succession of acts, a single act of cruelty is sufficient if it is a very serious act. A spouse’s abuse of alcohol does not constitute cruelty unless it is coupled with other misconduct. 

Fault-Based Divorce:  Cruelty is a legal ground for divorce in Virginia.  In order for a divorce to be granted on the basis of desertion:

• The cruelty must be corroborated by some evidence other than the admission of the spouse who committed the desertion 
• The other spouse must not have consented to the cruelty (see below under defenses
• The other spouse must not have provoked the cruelty
• There must not have been recrimination (see below under defenses)

If cruelty exists, a divorce can be filed immediately with no need to wait either six months or a year. 

Legal Implications of Adultery in Virginia Divorce

Effect on Property Division: While Virginia is an equitable distribution state, meaning that marital property is divided fairly but not necessarily equally, a spouse’s cruelty may be taken into consideration when determining how assets and debts should be divided. Courts especially look at the economic effect the cruelty had on the other spouse. 

Effect on Spousal Support/Alimony: Virginia law requires that, in determining whether a spouse should receive spousal support, courts must consider the causes of the dissolution of the marriage.  If cruelty is what caused the dissolution of the marriage, then the court will factor the cruelty into its spousal support decision.     

Child Custody and Visitation: In child custody and visitation matters, the court’s primary concern is the best interests of the child. Cruelty, by itself, is generally not a determining factor in custody decisions. However, if the cruelty had a detrimental effect on the child or disrupts the child’s well-being, it could be considered by the court when making custody determinations.  

Defenses Against Cruelty: Virginia law provides several defenses to a charge of desertion.  These include:

• Justification.  Justification simply means a legitimate reason for the action or statement.    
• Condonation.  If the spouses continue living together, after the cruelty occured, the cruelty may be found to have been “condoned” or forgiven.  
• Recrimination.  If both spouses are guilty of fault (adultery, desertion, cruelty) then the faults “cancel each other out.”