Divorce in Virginia

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  • Residency Requirements and Grounds for Divorce

  • Dividing the Property

  • Alimony

  • Child Custody and Visitation

  • Child Support

    Residency Requirements and Grounds for Divorce

    Either you or your spouse must be a resident of Virginia or a member of any armed force stationed in Virginia for six months to file for divorce.

    Either spouse can get a divorce simply by stating in divorce papers that "irreconcilable differences" have caused a breakdown in the marriage and the two parties have been "separated" - living separate and apart without cohabitation - for at least one year. If the spouses have no minor children and have entered into a separation agreement, they can get a divorce after being separated for only six months.

    If the spouses have been separated less than one year and are not in agreement that a divorce should occur, the spouse wanting the divorce must prove one of the following grounds for divorce:

    • Adultery, including homosexual acts
    • Subsequent to the marriage, conviction of a felony and imprisonment for over one year
    • Cruelty, causing a reasonable apprehension of bodily harm
    • Willful desertion or abandonment for one year

    The legal divorce process 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 given time to respond. If the parties are in agreement about property and debt division, as well as child custody and child support matters, the divorce can be finalized without a trial. If the parties can't come to an agreement, the court will then set a time for a hearing, usually some time in the future.

    After the Complaint for Divorce has been filed, either party 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" - will be divided "equitably" in a manner the court believes is "fair" when you divorce.

    But not all property is considered marital property. The "separate property" of each spouse is not included in the property division; therefore, you will be allowed to keep any separate property you own. Separate property includes:

    • Any property acquired before the marriage
    • Gifts and inheritances acquired during the marriage
    • Any property acquired in exchange for separate property, and
    • Any increase in the value of separate property

    In deciding how to divide the property owned by a divorcing couple, judges will consider:

    • The length of the marriage
    • The age and physical and mental condition of the parties
    • The circumstances contributing to the divorce
    • The contributions of each party to the well-being of the family
    • The contributions of each party to acquire and maintain the marital property
    • How and when specific items of marital property were acquired
    • The debts and liabilities of each party
    • 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 party for a nonmarital purpose or the expenditure of such funds in anticipation of divorce

    It is important to collect all the information you can about all your property, including when you purchased it, approximately how much it is worth, and details such as account numbers, serial numbers and so forth. Collecting this information before you see a Virginia divorce lawyer 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 parties
    • The length of the marriage
    • 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 not to seek employment outside of the home
    • The contributions of each party to the well-being of the family
    • The property interests of the parties
    • The equitable distribution of the parties' marital property
    • The earning capacity, skills, education, training and present employment opportunities of the parties
    • 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 specific length of time. A spouse whose adultery led to the divorce is ineligible for permanent maintenance unless the court determines that a denial of support would be unjust. 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 each parent and the child
    • The needs of the child
    • The role each parent has played in the upbringing and care of the child
    • The propensity of each parent to actively support the child's contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child
    • The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child
    • 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 family abuse (includes spousal and child 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

    In Virginia, child support is based on the combined gross income of the parents and how many children are being supported. In determining a just and appropriate amount, courts will consider the following factors:

    • Monetary support for other family members or former family members
    • Child custody arrangements
    • Imputed income to a party who is voluntarily unemployed or voluntarily under-employed
    • Debts of either party arising during the marriage for the benefit of the child
    • 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 established during the marriage
    • The earning capacity, obligations and needs and financial resources of each parent
    • The education and training of the parties and the ability and opportunity of the parties to secure such education and training
    • The contributions, monetary and nonmonetary, of each party to the well-being of the family
      The equitable distribution of the parties' 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.

    Related Web Links:
    - Virginia Courts
    - Virginia Domestic Relations
    - Virginia Child Support Calculator
    - Virginia Department of Social Services - Child Support
    - Virginia State Profile
    - Family Law: Selecting a Good Lawyer
    - Divorce - General message board for more help
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