The Basics of Virginia Divorce

Divorce is a challenging time in anyone's life, and being unclear on the rules and process can make the entire situation feel even more overwhelming. Whether you are just beginning to consider divorce or are ready to take the next steps, you must first understand what can be regarded as grounds for divorce in Virginia and what proof is required. Virginia is one of a handful of states where you can file what's known as a "fault" divorce. How do you prove "fault," and why would you want to do that? The following commonly asked questions can help people with limited to no knowledge of the Virginia divorce process understand the playing field.

What options do you have to resolve your Virginia divorce?

  1. Uncontested divorce. This is the simplest option. You and your spouse work with your respective attorneys to have them create the legal documents you need to separate and then file them in a timely manner. These documents usually include a “property settlement agreement,” which is essentially a contract between you and your spouse that resolves all matters related to your divorce.
  2. Mediation. · This process is an alternative dispute resolution method. You and your attorneys will work together with a neutral third party, the mediator, to establish terms for child support and alimony, divide up the marital estate, and resolve other issues. The mediator does not decide who's right and who's wrong but rather serves as a catalyst for negotiation by clarifying needs, ensuring smooth communication and inventing options to bring the parties together.
  3. Collaborative divorce. · This is a different alternative dispute resolution strategy. Like mediation, it's a voluntary process designed to bring parties together in agreement, so they can avoid a costly, lengthy litigation. A team of people, including attorneys trained in collaborative law, financial advisors, psychologists and coaches, works with the couple to resolve differences and hammer out agreements. If this process fails, and the couple goes to litigation, both parties need to retain new attorneys to go to court.
  4. Litigation. Not every divorce can be settled easily or simply. The couple may choose to let the court intervene and make decisions in a process known as litigation. The family law attorneys who represent you and your spouse will need to make formal legal arguments to the court, which then clarifies what needs to be done to resolve disputes and finalize the divorce.

Do you have to live in Virginia to file for a divorce in the state?

The answer is yes, with caveats. Either you or your spouse needs to have been a resident of Virginia for at least six months, if you want to file for divorce in the state.

The rules are slightly more complex for members of the armed services. If you have been stationed in Virginia for six months -- or if you lived here for six months before being deployed overseas -- you are allowed to file for divorce in the state. Exceptions could exist for you if you are working overseas for the Foreign Service too.

What does the concept of "separation" mean? Can you be separated and live together?

Separation is the process of splitting up prior to a divorce.

In general, separation is physical as well as emotional. One (or both) of the spouses usually moves out of the primary residence. But the couple can remain living together physically yet be legally separated. A special document, called a "separation agreement," stipulates how the arrangement should work with respect to tax payments, child visitation, property division, and insurance. These agreements are not required, but working with your family law attorney to create one can help add structure to an uncertain situation. Debts and assets that you and your spouse accumulate after a legal separation are handled differently during the divorce and are usually classified as separate assets or obligations rather than marital, but there are some exceptions.

Does the timing of a separation matter?

Yes, it can. To obtain a divorce from the court, you need to separate for a certain amount of time.

If you separate and live apart for a full year, you can qualify to obtain a no fault divorce. However, things can move even faster. You can obtain a divorce after just six months of being separated and living apart, if you and your spouse do not have any minor children, and if you have developed a written settlement agreement regarding your property.

What happens during a "fault" divorce? What’s the sequence of steps?

  • There are four main grounds for a “fault” divorce in Virginia: adultery, desertion, cruelty and conviction of a felony coupled with a period of incarceration of more than one year.
  • If there are “fault” grounds for your divorce, you may file immediately, and you are not subject to six or twelve-month waiting periods.
  • These situations tend to be more complicated, but filing for divorce allows you to seek certain remedies from the court that can stabilize the situation.

What are the types of custody in Virginia?

There are two types of custody: legal custody and physical custody.

What is legal custody?

Legal custody has to do with who gets to make critical decisions regarding the children's education, medical care, schooling, religious instructions and other legal issues. In general, the court prefers to award “joint legal custody.” That is, both parents get to share these responsibilities. Under certain circumstances -- e.g. one spouse deserted the family or developed a serious mental illness -- the court will award one parent sole legal custody. This can also occur by agreement of the parties. However, in general, the court wants both parents to cooperate and contribute to the upbringing of the children.

What is physical custody?

Physical custody has to do with which parent takes care of the children, when and under what circumstances. These arrangements can also be settled through an agreement. If a dispute goes before the court, the court may look to which parent, on a day-to-day, week-to-week basis, has cared for, fed and otherwise supported the children from the marriage. The primary caregiver and parent who typically has the children reside with him or her most of the time is known as the custodial parent. The minority caregiver, and often the parent who has visitation, is known as the non-custodial parent.

What factors does the court consider when assigning physical custody?

The court is very concerned with protecting the rights and health of any children affected by the divorce. Factors that can influence the court's opinion include:

  • The ages of the children and their preferences, if they're old enough;
  • Whether the parents demonstrate a willingness to cooperate with one another;
  • The court’s assessment of the parental homes: are they nurturing, healthy, clean and safe?
  • Whether either parent has a history of being abusive, physically or emotionally;
  • The children's relationships with siblings and other family members -- how might various custody arrangements affect those relationships?
  • The physical and mental capacities of both parents;
  • The parents’ lifestyles and work schedules;
  • Whether the children have any special mental, emotional or physical needs;
  • The history of the family. For instance, has one parent been the primary care giver for several years, or have the parents shared responsibility?

Does the court automatically give preferential treatment to the mother in custody negotiations?

In the past, the court had been biased in favor of mothers. There was a period of time in history when the court actually had a bias towards fathers. The modern trend is a gender-neutral focus centered-around the best interests of the child.

Do grandparents have any physical or legal custody rights?

Grandparent’s rights are akin to those of other third-parties, who can include relatives or even close friends in some cases. If a parent objects to grandparent visitation, the burden of proof required by the grandparent to show that visitation is in the child’s best interests rises to a higher standard. Virginia has a statute that this falls under, which allows so-called "persons of legitimate interest" to pursue their custody rights in court. This does not mean that a grandparent can automatically get custody, but it does give him or her opportunities to pursue rights.

Under what circumstances might the court grant custody to grandparents or other "persons of legitimate interest"?

  • The parents have been abusive or neglectful;
  • The parents abandoned the child;
  • The parents are mentally ill or without financial means to support the child.

What happens during custody disputes among same sex couples?

The law concerning same sex marriages in Virginia and beyond is in a state of great fluidity (as of 2014), but the principles of custody we just discussed still generally apply. The court still wants to protect the health and well being of children affected by divorce, and it strives to act in a neutral capacity.

What if both you and your same sex partner are considered legal parents?

In general, the court may treat the custody situation in the same way that it would treat a situation involving heterosexual parents.

What if only one of you is considered the legal parent?

In general, the non-legal parent in this kind of scenario has very little recourse to obtain legal or physical custody or visitation rights. However, the non-legal parent may not be totally powerless. Custody and visitation cases are very fact-driven, and every situation is different.

Do step-parents have any legal rights to visit children or obtain custody?

The Virginia statute that creates rights for "persons of legitimate interest" can be used, under certain circumstances, by step-parents to pursue custody and visitation. Similar caveats apply: Parental rights normally supersede the rights of step-parents.

Under what circumstances can the terms of custody and visitation be renegotiated?

The court aims to serve two goals. On the one hand, it seeks to create a stable arrangement that minimizes disruptions for children. On the other hand, the court wants the custody and visitation arrangements to be flexible enough to accommodate changing circumstances. Custody and visitation orders are never truly final, even after your case is over. If there has been a significant change in circumstances, and you can prove a change is in the child’s best interests, a court will modify your arrangement. How this is actually done is a complicated process. Schedule a consultation with an attorney at DiPietro Family Law Group to discuss your situation and determine if it is appropriate to file for a modification.

Here are four examples of situations in which a renegotiation might be likely:

  1. A parent gets sick or recovers from a chronic illness. In other words, the parent's physical capabilities to provide childcare and guidance change substantially from what they had been when the original agreement was negotiated.
  2. A parent experiences dramatic changes in financial status. For instance: the primary caregiver loses his job and files for bankruptcy; he no longer has money to pay for food and shelter for his daughters. Conversely: a parent who lacked an income stream during the custody negotiations launches a successful business and can now afford much more childcare.
  3. A parent moves out of state. A move can alter the logistics of the custody arrangement, creating challenges regarding both visitation and schooling for the children. If a parent desires to move with a child, a petition for relocation must be filed, absent an agreement. Relocation cases are typically more complex than the average custody and visitation case.
  4. A parent remarries. A change in relationship status or living situation of a child could prompt a need to reassess the custody and visitation arrangements.

How might charges of domestic violence impact custody and visitation orders?

Virginia's Family Abuse Protective Order establishes three tiers of responses to violent or threatening acts that lead to bodily harm or that frighten a person into believing that bodily harm will occur. These responses include emergency protection, preliminary protection, and permanent protection. If there is a protective order against one of the parents, the court will consider that order seriously when devising the custody and visitation plan. Custody and visitation arrangements can be ordered through a permanent protective order.

What are the three asset categories defined by Virginia divorce law?

Virginia law requires "equitable distribution" of the assets and liabilities from the marriage. All of the assets from the marriage can fit into one of three categories: marital property, separate property and hybrid property.

What do these property categories represent?

  • Marital property is any property the couple “owns” together, but ownership is not strictly tied to how the asset is titled. For example, the equity in a home that is only titled to one spouse can still be marital property. Other examples might include, investment properties, brokerage accounts, businesses owned by either spouse, wedding china, cars, mutual bank accounts, retirement funds, patio furniture and works of art.
  • Separate property, on the other hand, is property that belongs to one spouse. These assets might include money from an account that the spouse brought into the marriage, gifts given specifically to one spouse and not the other, and inheritance given to one spouse. It is possible that property owned prior to the marriage can become marital or hybrid property, depending on how the property is treated, retitled or changed.
  • Hybrid property falls somewhere in between separate and marital property. For instance, let's say you brought a Roth IRA into the marriage, but then you and your spouse both contributed to it over time. That will likely be considered hybrid property. Likewise, let's say you owned a home or a parcel of land, prior to getting married. You and your spouse developed the property or rebuilt the home. The land or home then might be considered hybrid property. “Hybird” means part-marital and part-separate.

How can you assign value to the marital assets and liabilities?

The answer depends on the asset or liability in question. In some cases, the process is simple: you don't need a forensics team to determine the amount of money in a Roth IRA account, for instance: just look at the account balance. However, the process of assigning what portion of that value is marital, what portion is separate, and the calculation of passive growth for the portion that was separate at the time of the marriage, is more complex.

On the other hand, determining the value of more nebulous assets, like real estate holdings, jewelry, art, businesses and intellectual property assets, gets trickier. You may need to hire appraisers, business valuation experts or accounting professionals to get useful answers.

Does the court automatically determine who gets what? What leeway does the couple have to determine distribution?

Absent a settlement between the parties and their lawyers or resolution of the case through mediation or the collaborative process, the court can resolve the distribution of assets and debts after a trial. A couple always has the right to settle their disputes in a manner they choose prior to the trial. Settlement terms are typically memorialized in a contract between the parties commonly titled a “property settlement agreement.” Property division in Virginia is known as “equitable distribution.” “Equitable” does not always mean “equal,” and diverse factors influence how marital assets are split up.

What are some of these factors?

  • How long your marriage lasted;
  • The tax ramifications for each person;
  • The liquidity of the assets: can they be sold and their revenue easily divided?
  • When the various assets (and debts) were acquired and under what circumstances;
  • The health, well being, mental state, ages and earning capacities of each spouse;
  • Each spouse’s contributions to the family, measured both monetarily and non-monetarily. (For instance, if one spouse spent the last seven years taking care of the children, the court will obviously take that into account.)
  • What happened to dissolve the marriage? For instance, did someone commit adultery, desert the marriage, or engage in abusive behavior?
  • The size, diversity and nature of any liabilities or debts of the marital estate.

What is alimony?

Alimony, also known as spousal support, is a court-ordered sum of money that one spouse pays the other, either in a lump sum, in a continuing arrangement over time or a combination of the two.

What determines alimony in a Virginia divorce?

Alimony is not guaranteed during a divorce. Many factors can influence how much spousal support should be assigned and under what circumstances, including:

  • The couple’s history and lifestyle;
  • Each spouse's level of sufficiency and resources;
  • Each spouse's income stream, earning potential, age, and mental and physical health;
  • Each spouse's past contribution to the well being of the family;
  • Whether one spouse was at fault (e.g. committed adultery, deserted the marriage or engaged in abuse). If so, or he or she may be denied spousal support.
  • Past decisions made by both parties regarding educational and career opportunities as well as the bearing of those decisions on current and future income capacity.

Is spousal support permanent?

Not necessarily. Depending on the length of the marriage and other factors the court is required to consider, an award can be time-limited. Temporary support may also be awarded before the divorce has been finalized. Marriages that last for a short period of time may lead only to time- limited support arrangements. After longer marriages, the support can be indefinite, up until the point that either spouse dies or cohabits (or gets remarried) with another romantic partner for a year or longer. Various payment arrangements can be worked out, as well. For instance, the supporting spouse can pay in a lump sum or pay in increments over months or years. Agreements to pay spousal support must be carefully drafted to avoid inadvertently making terms of your agreement permanent.

Instead of a divorce, can you get an annulment?

An annulment is another process that ends the marriage. It’s reserved for marriages created as a result of coercion or fraud, or marriages that were not recognized under Virginia law – such as marrying a minor in some circumstances. An annulment declares that the marriage is null and void, although in Virginia, some marriages are simply void, and filing a petition for annulment is not even necessary (some people do so just for good measure and to have documentation). It's a more complex type of action, and in some cases, the court will not have jurisdiction to hear matters related to marital assets and spousal support.

What if you don’t know where your spouse is? Can you still get divorced?

You can, but you first must publish a notice of the case you filed to the other spouse for several weeks in a local paper. Diligent efforts must be made to find the other spouse. The court may not have jurisdiction over property and support in these cases.

What is a "property settlement agreement," and why might you create this document?

This contract establishes what rights and obligations the parties owe to one another and can provide for custody and visitation arrangements in cases where a divorcing couple has children; it discusses elements such as lawyer’s fees, spouse and child support, custody, and division of marital assets. This agreement is usually the product of a successful negotiation, mediation or other process that results in settlement.

To get divorced, do you need a witness?

According to Virginia law, you do. That witness must be someone other than your spouse. The witness can testify via affidavit and does not need to attend a hearing.

If your Virginia divorce is uncontested, do you have to attend a court hearing or a deposition in court?

Not necessarily. A new law that went to effect in July 2012 allows divorcing couples to deliver their testimony via written affidavit, instead of at a public hearing. This process can be convenient and appropriate for certain cases, but each divorce needs to be evaluated independently. You may want (or need) to go to court, even if the divorce is uncontested.

What happens if your spouse is in jail? Can you still obtain a divorce?

Virginia law says yes. However, the situation can become complicated. If the jailed spouse will be incarcerated for a year or more -- or has been convicted of a felony -- the court may appoint someone called a Guardian Ad Litem to represent that person’s interests.

What do you need to do to prove adultery?

In most cases, all you will have is circumstantial evidence. In other words, you do not need to produce a picture of your spouse engaged in a romantic act with another person. However, the court will not grant you a divorce based on circumstances that are strongly suspicious; you must have clear and convincing evidence of adultery; i.e. all the circumstantial evidence adds up to clear proof. There are certain types of evidence that courts have accepted in the past as proof of adultery. Your attorney at DiPietro Family Law Group can make sure you are fully informed.

What do you need to prove desertion?

The burden of proof for desertion is not as high as adultery. That does not necessarily mean it is easier to obtain a divorce this way. Every case is different and highly fact-driven. One of the elements of desertion is an intent in the mind of the deserting spouse to abandon or desert the marriage. This can be difficult to prove. Your attorney at DiPietro Family Law Group will know how to present the evidence in a manner to give you the greatest chances for success.

Cruelty is another fault ground – How do I prove it?

Cruelty is usually associated with extremely harsh conduct. It can be one act of serious physical violence or repeated acts of moderate or serious physical violence. Emotional abuse can sometimes qualify as cruelty too. Name-calling and other forms of bad behavior are usually not enough. Just because the bad behavior does not add up to cruelty does not mean it does not constitute another ground for divorce. Your attorney at DiPietro Family Law Group can walk you through the process.

What is the official legal terminology for the “other man” or “other woman”?

The courts often call this person the paramour. The paramour is not a party to the case, but in some cases can become involved as a witness, or implicated in other evidence.

What does it mean to say someone “condoned” the adultery?

Let’s say that you learned that your husband cheated on you, but you continued to live with him and stay married to him for several more months before leaving. The court could interpret your action as “condonation” of the behavior – that you forgave the act – and may not allow you to obtain a “fault” divorce.

But what if you didn’t actually “condone” the behavior but just struggled to make a decision about whether or not to leave?

The courts will consider this fact as well. And if your spouse engages in adultery a subsequent time -- after you let the first incident slide -- you can use the second incident as grounds because each incident constitutes a separate ground for divorce.

What is “hearsay,” and how might hearsay affect a divorce case?

Hearsay is indirect testimony provided by a witness. For instance, let’s say that your sister heard from her neighbor that your husband kissed another woman at a café. Your sister’s testimony would be considered “hearsay,” because she did not directly observe the critical event. The sister’s neighbor, on the other hand, could directly testify about the public display of affection.

What legal terms will the court use to describe you and your spouse during the divorce?

The person who files for the divorce is the plaintiff; the other spouse is the defendant. If a counter-claim is filed (essentially means a Complaint for divorce filed by the defendant against the plaintiff), then the parties will also be known as counter-defendant and counter-plaintiff. Ask your attorney at DiPietro Family Law Group more about counterclaims and whether it is appropriate to file one in your case.

Where will your divorce case be filed?

The plaintiff has some discretion in regards to venue. In general, the city or county in Virginia where you and your spouse last lived together will be considered the venue. However, the plaintiff has the option to choose where the defendant currently resides as the venue.

What if the defendant doesn’t live in Virginia right now?

Then the proper venue will still be where the husband and wife last resided, or could be where the plaintiff currently lives, because technically every circuit court in Virginia would have jurisdiction. Jurisdiction is state-wide, and venue is more specific as to county or city.

What is a prenuptial agreement?

This is a legally binding contract that two people sign prior to getting married that stipulates how their assets and debts should be divided if the marriage ends in divorce. It can also provide for spousal support payments or waivers to receive spousal support.

What if you don’t have a prenuptial agreement?

Don’t worry: many married couples do not have one. Virginia law gives the court the power to make rulings about everything related to your divorce. A prenuptial agreement is simply an agreement between the parties for how exactly they wanted things to happen at the time the agreement was formed.

How might the prenuptial agreement affect the outcome of the divorce?

The answer depends on many factors. For instance, did both parties fully disclose their assets, debts and other salient information before signing? Was either party coerced into signing? Does the agreement create an unconscionable hardship for either person? The court will consider these and other factors if a party challenges the prenuptial agreement. Likewise, actions that either spouse undertakes during the marriage (or after the separation) can also invalidate the prenuptial.

Can I stay on my spouse’s health insurance plan after a divorce?

This is a question for the health insurance company, and it is typically not possible. A court cannot order the health insurance company to provide a divorced spouse with coverage. A court can sometimes order one former spouse to pay the other former spouse and amount of money that allows them to obtain coverage on their own. You can usually stay on your spouse’s health insurance plan during separation.

What is a guardian ad litem?

A guardian ad litem is a court appointed attorney who assists a minor (or someone who is disabled or incompetent) to advocate as an independent voice for that person’s best interests.

With respect to child custody and responsibility, what does “emancipation” mean?

“Emancipation” generally means when a child has reached the age of majority or is otherwise not subject to the jurisdiction of the court for custody and visitation purposes.

What’s the difference between “equitable” distribution and “equal” distribution?

The idea of equal means each side gets exactly what the other side gets. For instance, if you have a bank account with $10,000 in it, and you divide it “equally,” each spouse would get $5,000 dollars. Equitable is a far more nuanced concept, and it means that distribution should be fair and balanced; meaning that property is divided by the court equitably pursuant to the factors in the Virginia Code. Not everything is necessarily split 50/50.

What will the courts consider to be “marital property”?

Any assets, real estate or other property that you and your spouse accumulated from the minute that you got married to the start of the divorce could be considered marital property, unless you have a prenuptial agreement or used separate funds to acquire the property in some cases. This definition could cover diverse elements, including retirement accounts and bank accounts, annuities, houses and cottages, vehicles, china sets, books, and the like. If you personally received an inheritance or settlement from a lawsuit, those assets would not be considered marital property, unless it got comingled.

What does “comingled” mean?

In legal parlance, comingled means that assets, properties or money got mixed together in an account or fund that’s common to both people in the marriage. For instance, maybe you won a $100,000 judgment in a lawsuit four years ago, but then you put that money into a joint savings account that already had money in it. The courts may consider such funds “comingled.”

What is an “order of protection”?

It’s a court order designed to stop one person from harming, harassing or visiting someone else. For instance, let’s say your spouse committed an act of domestic violence. You may seek to obtain an order of protection from the court to prevent the abusive spouse from getting near, stalking or harassing you or your children. In Virginia, these are commonly referred to as “protective orders.”

What should you do if your spouse engaged in an act of violence, physical, emotional, or otherwise?

Domestic violence is a significant problem in our society. First and foremost, take care of your safety and any medical issues. If you’re in danger – or even if you just believe you’re in danger – call the police. If someone has been hit or otherwise injured, seek a competent medical evaluation as soon as possible. To the best of your ability, preserve evidence as well as relevant paperwork, such as hospital records, notes from your doctor, pictures of the injury or scene, etc. Speak with a qualified Virginia divorce and family law lawyer as soon as possible to determine your next steps.

What if you have been falsely accused of domestic violence?

False accusations regarding domestic violence can be incredibly painful as well as potentially personally and legally devastating. Avoid panicking. Get insights from a qualified Virginia family law attorney to understand your rights and determine the most strategic next steps.

What if your spouse makes up false allegations or lies? How would the divorce be affected?

The court could take such behavior under serious consideration when determining how to handle issues like child custody, division of assets and debts, and other critical legal concerns. For example, if a spouse was caught lying, it would work against him or her at a minimum against their credibility as a witness. This could call other aspects of their testimony and evidence into question as well. Improperly refuted allegations could be taken as true. It is critical to work with a family law attorney who is experienced in conducting investigations, examinations and trials that contain strategies to disprove false allegations and discover the truth.

Virginia Divorce Basics

While the process of divorce in Virginia can vary depending upon the specific details of your situation, relying on a legal professional to help you navigate the paperwork is a good place to start. This will ensure that you receive fair treatment and that you can separate cleanly.

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