Virginia recognizes two types of divorce. There is a divorce from the bond of matrimony, or a full divorce. This completely severs the relationship between two people and allows them to engage in any type of relationships that they wish thereafter. There is also a divorce from bed and board, sometimes referred to as a partial divorce. This arrangement recognizes that a couple is legally separated, but it denies the individuals the right to marry again.
Who can file for divorce in Virginia?
You can file for divorce in Virginia if you are resident of the state, your spouse is a resident, or if either of you are members of the military and have been stationed in Virginia for six months.
Do I need grounds for divorce in Virginia?
In Virginia, a divorce must not only be based on grounds, but those grounds must be proven in court.
What are they?
The grounds depend on the type of divorce that you plan to file for. Legally acceptable reasons for divorce from the bond of matrimony are:
- Adultery, sodomy and buggery, which refer to sexual conduct outside of the marriage. Sodomy refers to a sexual act other than intercourse and buggery is a sexual act against nature, such as bestiality. There are defenses for this ground, such as forgiveness, connivance or proof that you are also guilty of a ground for divorce. If a defense is successful, the divorce will not be granted.
- Conviction of a felony is a reason for the innocent person to obtain a divorce if your spouse is sentenced to more than a year and is incarcerated. You can use this ground for divorce if you have not lived with your spouse since becoming aware of the conviction.
- Separation is a means to dissolve the marriage without either party alleging that the other is at fault. For this reason to apply, you and your spouse must prove to the court that you agreed to live apart and have done so for more than a year. You must not cohabitate at any time during this period. The required separation period can be reduced to six months if you can a reach Property Settlement or Separation Agreement and you do not have children.
Legally acceptable reasons for divorce from bed and board are:
- Desertion and abandonment, a ground that should not be confused with separation. According to the law, when a person is guilty of this offense, he has ended cohabitation and he has the intention to desert his partner.
- Cruelty involves circumstances that make it unsafe for a couple to live together.
How long will it take?
The amount of time that it will take to get a divorce in Virginia can depend on several things. These include when you file, whether your spouse contests the divorce and the caseload in your jurisdiction. Ideally, if you file for a no-fault divorce after the separation period passes, the process may take an additional one or two months. A contested divorce may drag on for as long as two years.
Must we be separated first?
Separation is required if you are granted a divorce from bed and board and you later decide to obtain a divorce from the bond of matrimony. You and your spouse must live apart continually for at least a year. If you plan to file for a no-fault divorce from the bond of matrimony, you need to be live apart from your spouse for at least a year, or six months if there are no children and a marital settlement agreement is arranged out of court.
Can I get temporary support during the divorce?
You may qualify for temporary spousal support or temporary child support. These issues will be determined at a Pendente Lite Hearing, where you can also address concerns such as attorney fees or having exclusive access to the marital home. A Pendente Lite hearing is not an automatic part of the divorce process, you will have to file a motion with the court.
How is marital property handled in Virginia?
Virginia is an equitable distribution state, but this does not mean that two parties will receive equal amounts of property or cash. Property with a joint title and property that was acquired up until the point of separation is considered marital property, unless it was an inheritance or gift to one person. There is a statute that provides guidelines for the court to divide marital property. The amount that you will be awarded and the manner that this will be done can greatly vary. For example, Virginia courts can order that marital property be sold and then make monetary awards as they deem fit, or jointly titled property may be transferred to one individual. Factors that will be considered when making the division include financial and non-financial contributions to the support of the family and contributions to the care of the marital property.
How are retirement assets divided?
The amount of retirement assets obtained during the course of the marriage will be considered marital property and subject to equitable distribution. However, in Virginia, a person cannot be awarded more than half of another person's retirement.
What about spousal support and alimony?
Spousal support, commonly referred to as alimony, is not awarded in every case. Virginia does not use spousal support as a means to punish a person found at fault for a divorce. Instead, it is awarded when one person has less financial independence than the other and the divorce will have a notable impact. When determining how much to award, factors such as age and earning potential are considered. A lump sum may be ordered or an individual may be instructed to make payments. Virginia also allows individuals to seek a reservation. This is an arrangement where spousal support is not awarded at the time of divorce but a person is given the right to request it in the future.
What are the child support guidelines in Virginia?
When considering the financial care of children, the court may use the state's child support guidelines, but this is not required. The court has the ability to deviate from the guidelines and consider the needs of the child and the finances of the non-custodial parent. This can result in payments that are greater or less than those that would apply if the guidelines were used. The child support paid by non-custodial parents who have their children for more than 90 days per year is generally subject to a different formula that lowers the obligation. In any case, the award for child support is not always permanent. It can be increased or decreased if the financial circumstances of either parent changes.
Can we reach a property settlement agreement out of court?
You can develop your own terms without the interference of the court. The agreement can include details such as property division, spousal support and child support. Once the agreement is signed and notarized, you can be submit it to the court, which will then enforce the terms.
What happens if we can't agree on the terms?
There are two options if you and your spouse cannot develop a settlement agreement on your own. You can each have an attorney represent your interests and allow the two professionals to develop an agreement. Once you and your spouse agree on the terms developed by the attorneys, the agreement can be submitted to the court for enforcement. Otherwise, you can allow the court to resolve your issues. You should understand that this may work in your favor, but it may not. This option is also likely to give you the least amount of negotiating power.
Other important considerations in Virginia divorce cases
Filing forms correctly is very important in Virginia divorce cases. For example, if you outline your grounds for divorce incorrectly, your spouse can file a motion and have your case dismissed. This means you will have to start over from the beginning.
Also know that after you file your papers, your spouse is afforded a legal response period and your case cannot be furthered during this time. If your spouse lives in Virginia, he has 21 days. If he lives elsewhere in the US, he has 60 days. Individuals outside of the US are given 90 days to respond to divorce complaints.
Legal assistance
If you are planning to file for divorce in Virginia, you should consult with an experienced lawyer. There are many issues to consider and a number of complex documents to draft. Considering that your future can be affected by the outcome, your interests are best served by allowing a professional to advise you on these matters.
