In a Virginia divorce, you may be accused of being at fault, or responsible for the divorce. You and your highly skilled family law attorney can fight charges of being at fault through affirmative defenses. Five typical affirmative defenses in divorce cases are condonation, insanity, collusion, recrimination, and connivance. Let’s take a closer look at each.
Under Virginia Code § 20-91, one of the fault grounds for divorce (blame is assigned to one party or the other) is “adultery; or for sodomy or buggery committed outside the marriage,” the specific definitions of which are rather unpleasant (let’s leave it at unfaithfulness; sexual intercourse that, shall we say, misses the mark; and animals).
Condonation comes to us from Latin roots that mean “to refrain from punishing.” If you legally forgive your spouse for adultery, sodomy, or buggery, then you cannot assert those acts as fault grounds. If she legally condones your adultery, sodomy or buggery, she cannot then claim those grounds as a reason for the divorce.
How do you legally forgive someone for an amorous animal entanglement? Under Code of Virginia § 20-94, if you knew about the adultery, sodomy or buggery and “voluntarily cohabited after the knowledge of the fact of adultery, sodomy or buggery,” or allowed five years to pass before filing for divorce, then “the divorce shall not be granted.”
If you are accusing your wife of adultery, sodomy or buggery, be absolutely certain you can demonstrate that you did not condone it. Do not resume normal marital relations after you learn of the transgression.
Laymen and laywomen toss around a lot of legally perilous language in everyday conversations. “She’s nuts,” “He’s crazy,” “That’s insane.” Insanity is not a medical term; it is a legal finding. And it is not taken lightly in Virginia’s courts.
If you are filing for divorce on grounds that your wife is incurably insane, you must legally prove she is, in fact, insane. You and your attorney would need to present medical and psychiatric records (not always easily pried loose from HIPAA-bound professionals), testimony or affidavits from those professionals, and witnesses.
An insanity defense is rarely upheld, because under Code of Virginia § 20-91 (9)(a) and (9)(b) the timeline for divorce, insane or not, is still the same: be separated for six months (no children) or a year (with children). The adjudged insane spouse is granted a guardian ad litem to represent the spouse in the divorce.
You both get in trouble with colluding to fool Virginia’s courts into speeding up your divorce. If you agree to claim, for example, that your wife had an affair when she did not, that is collusion.
If, after filing for the divorce on fault grounds (adultery), you have second thoughts about the charge, you can use a defense of collusion. The only advantage of this is to avoid either spouse being penalized under fault grounds divorce. In our example, the assertion of adultery against your wife would mean she got little or nothing from the divorce, a harsh punishment for a crime she did not commit.
In a time when someone turns every accusation of wrongdoing back onto the accusers, recrimination is perhaps one of the easiest defenses to understand.
Say you accuse your wife of cruelty (a fault ground), fully knowing that you, too, have been cruel to her. She accuses you of adultery, but she also committed adultery. You say she’s a meth head while you yourself have taken up the pipe. And so on.
Neither of you looks particularly good with this defense, but it does remove the “fault” from the divorce. She did exactly the same thing she is accusing you of doing; you’re both schmucks. Neither of you has clean hands, so the fault ground cannot sustain.
Connivance is the “Mission Impossible” take on fault grounds. Connivance means setting up your spouse to commit a fault and then later accusing your spouse of that act in your divorce petition.
Say your wife knows you are attracted to one of her friends. She arranges for her friend to seduce you, and then she files for divorce based on your adultery. You can use the affirmative defense of connivance: she set you up!
Connivance seldom works with anything beyond adultery. You also bear the burden of proving your spouse engineered the whole sordid affair.
By calling 757-383-9184 to speak with an experienced divorce attorney at The Firm For Men, you can gain the knowledge, power and prestige of some of Virginia’s finest lawyers. Whether arguing forcefully in court using an affirmative defense, or negotiating an amicable parting, we represent Virginia’s men when they are at their most vulnerable — divorce.