Child Support
Residency Requirements and Grounds for Divorce
Either you or your spouse must be a Virginia resident for six months to file for divorce. You qualify if you're in the military and stationed there.
Either spouse can get a divorce simply by stating in divorce papers that "irreconcilable differences" have caused a breakdown in the marriage and you've been separated for at least one year. If you and your spouse don't have minor children and have a separation agreement, you can divorce after a six-month separation.
If you haven't been separated long enough, or don't agree on the divorce, one spouse can seek a divorce on the following grounds:
- Adultery, including homosexual acts
- Conviction of a felony after the marriage, and imprisonment for one year
- Cruelty, causing a reasonable fear of physical harm
- Willful desertion for one year
A divorce case begins when one of the spouses files a "Complaint for Divorce" with the Circuit Court on the Chancery Side. The other spouse is then served with the paperwork and has time to respond. If you and your spouse agree on key issues, such as property division, support and child custody, the divorce can be finalized without a trial. If you don't agree, a hearing on the issues is scheduled.
After your case is filed, either you or your spouse can request temporary assistance from the court in the form of temporary custody and child support orders, and orders to determine who pays community debts on a temporary basis.
Dividing the Property
In Virginia, all assets and debts acquired before and after your marriage - called "marital property" - are divided "equitably" or in a fair manner upon divorce.
Each spouse keeps his or her separate property. Separate property includes:
- Any property acquired before marriage
- Gifts and inheritances you received during while married
- Property exchanged for separate property
- Any increase in the value of separate property
Equitable division of property doesn't always mean an equal division. In deciding how to fairly divide marital property, owned judges will consider:
- Marriage length
- The age and physical and mental condition of the parties
- Circumstances leading to the divorce
- Contributions of each spouse to family well-being
- Contributions by each spouse in acquiring and keeping up marital property
- Details on acquisition of marital property
- The debts and liabilities of each spouse
- The liquid or nonliquid character of all marital property
- The tax consequences of the property division
- The use or expenditure of marital property by either spouse for a nonmarital purpose or spending funds in anticipation of divorce
Be prepared with information on your property, including when you purchased it, an estimate of value, and details such as account numbers, serial numbers and so forth. You'll be ready to meet with a Virginia divorce lawyer and it can save you a lot of time and money.
Alimony
A court can order alimony, called "maintenance" in Virginia, at its discretion. In deciding the amount of maintenance to award, the court will consider such factors as:
- The circumstances contributing to the divorce
- The obligations, needs and financial resources of the spouses
- Marriage length
- The standard of living established during the marriage
- The age and physical and mental condition of the parties and any special family circumstances
- The custodial parent's need to care for children instead of working
- The contributions of each party to the well-being of the family
- The property interests of the spouses
- Division of marital property
- The earning capacity, skills, education, training and present employment opportunities of the spouses
- The decisions made during the marriage regarding employment, career, economics, education and parenting that affected either spouse's earning potential, including the length of time absent from the job market
- The contributions of either spouse to the education, training, career position or profession of the other spouse
- The tax consequences of a maintenance award
A court can order temporary support while the divorce is pending. Most maintenance is ordered for a set length of time. Once maintenance is ordered, it can be modified upon a showing of a "change in circumstances."
Child Custody and Visitation
In Virginia, the court will make child custody decisions based on what is in the "best interest" of the child if the parents can't come to an agreement. In deciding how much time each parent should spend with the child, the court considers many factors, including:
- The age and physical and mental condition of the child and the parents
- The relationship existing between the parents and the child
- Child's needs
- Past parenting role of each parent
- Whether each parent is likely to support their child's relationship with the other parent
- Whether the parents show they are willing and able to maintain a close and continuing relationship with their child, and cooperate in child-rearing matters
- The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference
- Any history of domestic abuse
After the custody order is signed by the judge and filed with the court clerk, both parents are bound by it. If a parent is denied court-ordered access to a child, he or she may bring the issue back before the court. The judge may decide to modify the visitation order, order makeup visitation for the time missed and order counseling or mediation.
Child Support
Child support is based on state guidelines, which factor in the combined gross income of the parents and how many children are being supported. The child support guidelines amount is presumed to be correct. However, a court can deviate from the guidelines if that amount would be unjust or inappropriate. The court looks at many factors in deciding support issues, including:
- Monetary support for other family members or former family members
- Child custody arrangements
- Imputed income to a parent who is voluntarily unemployed or underemployed
- Debts arising during the marriage for child's benefit
- Debts incurred for the production of income
- Direct payments ordered by the court for health care coverage, maintaining life insurance coverage, education expenses, or other court-ordered direct payments for the benefit of the child
- Extraordinary capital gains
- The age, physical and mental condition of the child, including unreimbursed medical or dental expenses and child-care expenses
- The independent financial resources of the child
- The standard of living for the family during the marriage
- The earning capacity, obligations and needs and financial resources of each parent
- The education and training of the parents and the ability and opportunity to gain the same in the future
- The contributions, monetary and nonmonetary, of each party to the well-being of the family
- Division of marital property
- The tax consequences of a child support order
- A written agreement between the parties or a pendente lite decree including the amount of child support
A Virginia child support order can be modified if there has been a "material change in the circumstances," such as a big increase or decrease in either parent's income.