Can I Get Custody Even If the Divorce Was My Fault?

If you’re facing the possibility of a fault-based divorce in Virginia, you’ve likely already realized that it has the potential to affect every single part of your divorce settlement. The division of assets, alimony, child support, and child custody may all be affected by who takes the blame for the split.

For many parents, the fear is that their mistakes will lead to the loss of their parenting time. If you’re in this situation, learn more about getting custody when you’re at fault for a divorce. When you’re ready to get more specific advice for your unique situation, call Olmstead & Olmstead at 703-361-1555.

Fault-Based Divorce in Virginia

It’s crucial to understand the difference between fault and no-fault divorce in Virginia. If your spouse is filing for a fault-based divorce, they will need to prove that you engaged in one of the following:

  • Abandonment for at least one year
  • Adultery
  • Conviction of a felony
  • Cruelty

That is to say, your spouse cannot simply claim that you did one of these things and get the divorce to swing in their favor. They must have conclusive proof of their claims for the court to take them seriously.

No-fault divorce is basically the same as claiming irreconcilable differences. Even though one or both parties may be at fault for the split, no one is legally at fault.

The answer to the question posed in the title depends on which route you take. If your spouse files for fault-based divorce and can prove their claims, your custody rights could be affected. If you are filing a no-fault divorce but your spouse claims that you are at fault for working too much, having an unproven affair, or being a bad communicator, that won’t hold up in court.

Custody Doesn’t Automatically Go in the Other Parent’s Favor

The good news is that custody does not automatically go to the other parent just because one parent is at fault for the divorce. Remember, custody isn’t something that is used to punish or reward parents for what they have or haven’t done. Custody is determined based on what is in the child’s best interests. If the court finds that it is in the child’s best interests to be with you for part or all of the time, that may override whatever you did to cause the end of the marriage.

You May Face an Uphill Battle

Still, you must approach this issue with caution. There really is a lot at stake with a fault-based divorce, and you do not want to underestimate that. Depending on what you allegedly did to cause the end of the marriage, your parenting time could be on the chopping block.

It all depends on what you did, how it affected or is likely to affect the children, and how much of a positive presence you are in your children’s lives. If your spouse is committed enough to pursue a fault-based divorce, they may also be willing to continue the fight when it comes to custody.

The Reason for the Divorce Matters

The grounds for the divorce are an important part of determining whether or not your parenting time will be affected. Let’s use adultery as an example. If you engaged in an extramarital affair where you spent no family money on the other individual, never introduced them to your children, and still spent substantial time with your children, that could minimize the damage.

The court might look at what happened and determine that, even though it was very harmful to your spouse, it caused minimal damage to your children. On the other hand, if you engaged in an affair and spent copious amounts of marital money on the affair partner, involved the affair partner in your children’s lives, and are now living with the affair partner, the court will tread much more carefully when it comes to your custody requests.

Contact Olmstead & Olmstead to Find Out How We Can Help You

No matter what the circumstances of your divorce are, do not wait to hire an attorney. With a lawyer, you can fight for the custody agreement you feel is best for your children. Just call Olmstead & Olmstead at 703-361-1555 or send us a message online to set up a meeting now.

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