The laws in each state govern the major areas related to divorce which are child custody, the division of property, child support and alimony or spousal support. Other laws related to marriage are federal laws such as income tax filing status.
It is important that each spouse have an understanding of Virginia’s divorce laws so he or she can make the best decisions possible. A Virginia divorce attorney can be your guide through the legal process, as well as protecting your interests and those of your children.
Alternatives to Divorce
Alternative Dispute Resolution
Child Support, Visitations and Paternity
Division of Assets and Debts
Post Divorce Modifications
- ADR Available: Yes
- Fault or No Fault: Fault
- Parenting Plan Required: Yes
- Property Distribution: Equitable
Grounds For Divorce
Many states have what is called “no-fault” divorce in which the couple cites irreconcilable differences or states that the marriage has irretrievably broken down. The Commonwealth of Virginia has five grounds for divorce, one of which is similar to a no-fault divorce. If the couple has been living separately, the separation itself can be considered the “faultless” grounds for the divorce. The grounds for divorce in Virginia are:
- Separation (divorce from the bond of matrimony) for six months if no children or for one year if there are children from the marriage
- Adultery, sodomy or buggery (divorce from the bond of matrimony) which must be proven
- Conviction of a felony (divorce from the bond of matrimony) and imprisoned for one year during the marriage and at the time of the request for divorce
- Willful desertion or abandonment (divorce from bed and board) which is considered a break from cohabitation
- Cruelty and reasonable apprehension of harm (divorce from bed or board)
Some of the grounds for divorce overlap. For example, if you were subjected to cruelty or abuse, and so left the marital home, that would not typically be considered fault for willful desertion. Likewise, if your spouse left home (desertion) for six months or more, then it could be considered divorce from the bond of matrimony, provided there were no children from the marriage.
Divorce Waiting Periods
In Virginia, the person who is requesting the divorce is called the plaintiff and the other party is the defendant. There is a six-month residency period prior to filing the “complaint” requesting a divorce. Beyond that, the waiting periods are as follows:
- Six months for divorce due to separation if there are no children
- One year for divorce due to separation if there are children
- One year for divorce due to cruelty or desertion dating from the time of the cruelty or desertion
There is no waiting period for divorce due to felony conviction or due to adultery, sodomy or buggery. It should be noted that divorce due to adultery, sodomy or buggery must be proven.
A couple who is living apart is considered separated, even though there is no designation in Virginia called Legal Separation. There is, however, a Separation Agreement, also known as a Property Settlement Agreement. This is essentially an agreement that covers the same issues as those covered in the divorce. The Settlement Agreement is a binding agreement which covers such issues as child custody, child support, division of property, tax filing status or other tax considerations, alimony and division of retirement assets.
An attorney is recommended to represent your interests, should you decide on this route. The advantage of using a Settlement Agreement is that it can speed up the divorce process, and a couple can make their own decisions, without taking a chance on what the court may, or may not, order.
An annulment is a way of ending the marriage by determining that the marriage was not valid or legal to begin with. There are just a few grounds to have a marriage automatically annulled, or “void ab initio” meaning “to be treated as invalid from the outset”:
- Marrying a relative (sibling, half-sibling, ancestor/descendant, aunt/nephew or uncle/niece)
- Same-sex marriage
Other marriages which can be voided or annulled by the court are those involving:
- Charades or scams such as a “green card” marriage
- Fraud or duress to force the marriage
- Impregnation by a person other than the husband during the marriage
- Marriage as a joke or jest
- Mental or physical incompetence at the time of the marriage
- Unknowing marriage to a felon or prostitute
Alternative dispute resolution methods are ways of settling a legal dispute, without resorting to litigation in a courtroom. In Virginia, the type of ADR that is permitted for divorce is a process called mediation.
Mediation uses a trained professional, typically an experienced attorney or retired judge, who helps the couple communicate and reach an agreement. The mediator is a neutral third party who does not represent either the husband or the wife. The mediator attempts to get the couple to a “win-win” agreement regarding child custody, division of property and other important divorce decisions.
If the mediation is successful, the couple would sign an agreement, which would become legally binding. If the mediation is not successful, the couple can go to court and get a divorce ruling from a judge or jury.
Those among the approximately 125,000 members of the military who wish to divorce may wonder if a military divorce is any different than a civilian divorce. In many ways, they are exactly the same. The residency requirement, for example, is the same for civilians and members of the military, as are the grounds for divorce.
In most cases, it would be wise to obtain legal representation from a divorce lawyer who has represented other members of the military previously. For example, according to the JB Langley-Eustis Law Center, if a military marriage was at least ten years long, “and the ten years overlapped with ten years of creditable service toward retirement, the non-military spouse is eligible to receive his/her portion of the retirement pay directly from the Air Force.”
One of the most emotionally and potentially contentious divorce issues is child custody. The way in which the parents handle the issue can have a long-lasting impact on their children’s well-being and on the cordiality of the ex-spouses.
Child Custody Determinations
The days of giving the wife sole custody of the children are gone. Today, the court recognizes that both parents play an important role in the lives of their children. In Virginia, the court generally prefers some type of joint custody arrangements.
There are two types of child custody. Legal custody is the ability to make decisions regarding the education, religious upbringing and medical care of a couple’s child or children. Legal custody is typically shared, unless there has been abuse or domestic violence in the marriage.
The other type of child custody is physical custody, which can be either joint custody, or sole custody. Physical custody is where the child lives and includes food and shelter. Parents will need to come to an agreement on a physical child custody arrangement. If they cannot reach an agreement, the court will make a decision based on the following factors:
- Each parent’s age, physical and mental condition
- Other pre-existing relationships with siblings and other relatives
- The child’s age, physical and mental condition, and the child’s opinion if the child is old enough
- The likelihood that the parent will encourage a positive relationship with the other parent
- The pre-existing relationship of the child to each parent, and the role each parent has played in parenting
If there has been any domestic violence or abuse in the family, the court can limit or restrict the abusive parent’s visitation with his or her child and prohibit either physical or legal custody by the abusive parent.
Visitation and Parenting Plans
In Virginia, the court will need to approve the child custody and visitation arrangement contained in a Parenting Plan. One parent can submit a Parenting Plan on his or her own, or the couple can submit it together if the plan is something to which they both have agreed.
The Parenting Plan covers such items as:
- Communication (how will the parents communicate schedule issues?)
- Doctor visits
- Major decisions such as religious worship, extracurricular activities, driving a car and others
- Major holidays
- Overnight visits or visitation (90 days or less for the noncustodial parent)
- School vacation time
- Time-sharing (50/50 for joint physical custody)
Violations of the Parenting Plan are treated very seriously. For example, Virginia’s Parenting Plan states, “If a parent violates the Parenting Plan, the Court can modify the plan in favor of the parent who did not violate the plan. The Court can change custodial responsibility to favor the non-violating parent, or the Court can grant exclusive custodial responsibility to the non-violating parent.”
Child support is considered a responsibility of both parents. Virginia determines whether child support is owed, and how much may be owed, based upon several factors. The most important two factors are:
- The combined gross income of the parents
- The number of children from the marriage or relationship
Virginia has a schedule of child support amounts per child, based on the parents’ combined gross monthly income. For example, if the parent’s combined monthly income is $5,000, the child support for one child is $666. If spouse A makes $3,500 per month and spouse B makes $1,500 per month, spouse A is responsible for 60 percent of the child support, which is $399.60.
There are several costs which can be added to or deducted from the combined gross income such as child support to a child from a previous marriage and spousal support. An experienced divorce attorney can provide you with an accurate estimate of child support which you may owe, or may receive.
Child Support Enforcement
Staying current on child support is treated as a serious matter in Virginia. It is important to understand that child support violations and visitation violations are two separate matters. A parent who is owed child support is not permitted to withhold visitation. Likewise, a parent who is denied visitation is not allowed to withhold child support.
If a parent is behind in child support payments, the court has several options including:
- Confiscation of income tax refunds
- Confiscation of investment funds
- Driver’s license suspension
- Real estate liens
- Wage garnishment
Establishing paternity is establishing the legal father of a child, although that person may or may not be the biological father. There are two primary reasons to have a paternity determination:
- To assert one’s rights and responsibilities as a father
- To obtain child support
If a couple is married when a child is born, the paternity is automatically established. If a couple has a child before marriage, and marries after the birth, the couple could complete a “Voluntary Acknowledgment of Paternity.” Many unmarried new parents do this at the hospital before leaving with the new baby. The form can be completed at any time.
Paternity can also be established through the court with an “Order of Paternity.” This is done in instances where child protective services are involved, where the paternity is contested and in other instances. The paternity is established via mouth swabs for DNA testing.
Domestic violence is a legal issue which can cross the line into criminal defense with potential assault charges and orders for protection. In terms of divorce, it is important to know that domestic violence in marriage or a relationship can result in changes to child custody determinations and visitation privileges.
The court may require supervised visitation in which the parent and child meet only in the presence of some other designated adult or at an authorized location. Supervised visitation is not necessarily permanent.
The court could also terminate parental rights on a permanent basis. Because this is a permanent termination of rights, it is only done as a result of serious situations such as extreme neglect, habitual abuse or sexual assault.
There are two potentially contentious issues during divorce, one of which is child custody and the other being the division of property. The Commonwealth of Virginia considers all assets and debts acquired during a marriage as community or marital property which is subject to division. The exception to this is property which was owned or acquired prior to the marriage and property which was inherited during the marriage, as long as the separate property is unmingled with marital property.
Division Of Property
Property is divided in a way that the court considers equitable, which is not quite the same thing as equal. If you and your spouse can agree on how to divide your marital property, the court will typically agree to the split. If there is disagreement, then the court will decide how the property will be divided and may award slightly more to one party than the other party.
The types of property which will be divided include:
- All credit card debt
- All motor vehicles, boats and other similar property
- All real estate property including the family home
- Any unsecured loans
- Collections of artwork, coins, guns or other collectible items
- Household furnishings and clothing
- Retirement savings including IRAs, Keoghs, 401(k)s
Depending on the length of the marriage and the income-earning history of the couple, alimony or spousal support may be awarded. The purpose of alimony is to prevent economic hardship to the spouse who has either been not earning income at all, or who is earning less income. For example, if one spouse was a stay-at-home parent, that spouse could be awarded alimony. Alimony typically ends when the recipient dies or remarries.
The grounds for divorce can impact who is eligible for alimony. For example, if spouse A earns a higher income, and spouse B was found to have committed adultery or a crime, spouse A may not need to pay alimony to spouse B.
When situations change significantly, either ex-spouse can request a modification to the divorce terms such as child custody, visitation, and child support or alimony payments. Common reasons for post-divorce modifications include loss of employment, moving out of state or other relocation, medical conditions for either ex-spouse or a child from the relationship or an ex-spouse needing to care for aging parents.
To learn more about the legal issues that will affect your family, contact us today to speak to a Virginia divorce attorney.