Divorce Guide
Defenses to Divorce in Virginia
Virginia law recognizes several defenses a spouse can raise in response to a fault-based divorce complaint. These defenses are procedural and conduct-based — when they apply, they can defeat or delay the fault ground being alleged. Understanding whether a defense is available in your situation requires an analysis of the specific facts. Shawna L. Stevens PLLC has practiced family law in Fredericksburg and the surrounding area for more than 20 years.
Serving Fredericksburg (22401, 22405, 22406, 22407, 22408), Stafford County, Spotsylvania County, King George County, and Caroline County.
Shawna L. Stevens
Family Law Attorney, Fredericksburg VA
J.D., Thomas M. Cooley Law School — graduated summa cum laude — Licensed by the Virginia State Bar — practicing exclusively Virginia family law for more than 20 years.
When Defenses to Divorce Apply
Defenses to divorce are primarily relevant in fault-based cases. Under Virginia Code § 20-91, fault grounds include adultery, cruelty, reasonable apprehension of bodily harm, willful desertion, and felony conviction with imprisonment. When a spouse files on one of these grounds, the other spouse can raise a defense to defeat or undercut the fault allegation.
In no-fault cases based on separation, defenses are rarely relevant — the primary question is whether the required separation period under § 20-91 has been met. However, if the reason for filing matters to the financial outcome of the case (as it does when spousal support is at issue), understanding whether defenses are available becomes strategically important.
The Main Defenses
Recrimination
Recrimination is perhaps the most commonly raised defense. It means that the spouse filing for divorce on fault grounds also committed a fault ground. If both parties are at fault — for example, both committed adultery — the complaining spouse’s own conduct can be used to defeat the fault ground they are asserting against the other. Virginia courts have recognized recrimination as a bar to a fault-based divorce when the evidence supports it. The practical impact has diminished somewhat in modern practice, but the defense remains available and can matter significantly when fault is relevant to spousal support.
Condonation
Condonation means the complaining spouse forgave the misconduct. The most common evidence of condonation is resuming marital relations — cohabiting as a couple — after becoming aware of the fault conduct. If a spouse learns of adultery, continues to live with and sleep with the other spouse for several months, and only then files for divorce, condonation may be raised as a defense. Importantly, condonation is conditional — if the forgiven conduct is repeated, or if a new fault ground arises, the condonation defense is considered lifted.
Connivance
Connivance arises when the complaining spouse participated in, consented to, or set up the conditions for the misconduct being raised as a fault ground. It is most commonly raised in adultery cases where one spouse facilitated or encouraged the other’s affair. Connivance is relatively difficult to prove and is raised less frequently than recrimination or condonation, but it remains a recognized defense under Virginia law when the facts support it.
Provocation
In desertion cases, provocation can be raised as a defense. If the spouse who left did so because the other spouse’s conduct made continued cohabitation unreasonable — for example, persistent cruelty or threats — the departure may be characterized as justified rather than willful desertion. What constitutes sufficient provocation is highly fact-specific and turns on the particular conduct and circumstances of the marriage.
Procedural Defenses
Separate from conduct-based defenses, a spouse can also raise procedural defenses to a divorce complaint: lack of subject matter jurisdiction (neither party has met the Virginia residency requirement under § 20-97), improper service of process, or failure to satisfy the statutory requirements for the ground being alleged. These defenses address whether the court has authority to proceed and whether the complaint was properly filed — not whether the underlying conduct occurred.
Defenses, Fault, and Spousal Support
The reason defenses to fault-based divorce matter most in Virginia practice is their connection to spousal support. Under Virginia Code § 20-107.1, a spouse who commits adultery is generally barred from receiving spousal support — unless the court finds that a denial would constitute a manifest injustice. This is a significant financial consequence.
When both spouses have committed fault conduct, the recrimination dynamic affects not just whether a fault ground can be proven, but which party is positioned to seek spousal support and how. If your spouse is alleging a fault ground against you that could affect your support rights, understanding whether a defense is available — and how to raise it effectively — is directly tied to your financial outcome in the divorce.
The strategic decision of whether to raise a defense, and how aggressively to pursue it, depends on the facts, the available evidence, and what you are trying to protect. These are conversations that should happen early in the case.
Questions We Hear Often
Do defenses to divorce prevent the divorce from happening?
Rarely, in practice. Even if a fault defense succeeds, the parties can still obtain a no-fault divorce once the required separation period under Virginia Code § 20-91 has elapsed. The more practical function of fault defenses today is their effect on spousal support — successfully raising recrimination or condonation can neutralize a fault allegation that would otherwise bar one spouse from receiving support.
Does it matter who files for divorce first?
Filing first does not give you a legal advantage in Virginia divorce proceedings. The court does not favor the filing spouse. What matters is the facts, the evidence, and the positions each party takes on the issues in the case. However, the party who files controls the initial framing of the complaint and chooses which ground to allege, which can have strategic significance in fault cases.
Can I raise a defense if fault grounds were alleged against me?
Yes. If your spouse has filed on a fault ground — adultery, cruelty, or desertion — you have the right to file an answer and raise any applicable defenses. The timing matters. Defenses should be raised in your response to the complaint, and the facts supporting the defense need to be developed through the discovery process if the case is contested.
Talk to a Divorce Attorney in Fredericksburg
Whether fault grounds have been alleged against you or you are considering raising them against your spouse, the strategic decisions involved are significant. Contact Shawna L. Stevens PLLC to schedule a confidential consultation.
Fees are discussed directly at your consultation and are based on the specifics of your case.
Phone: (540) 310-4088
Email: [email protected]
Address: 307 Lafayette Blvd, Suite 200, Fredericksburg, VA 22401
Part of our Virginia Divorce Guide • Related: Equitable Distribution • Divorce Overview