In Virginia, you must have “grounds” for your divorce. The grounds can be based on fault – for example, one spouse commits adultery, commits a felony, commits acts of cruelty or deserts the other spouse. Or the ground may not involve fault – for example, both spouses agree to live apart for six months with a written agreement (and have no children) or live apart for one year (with children). Note that the legal requirement for separation before filing requires at least separate sleeping arrangements and a lack of physical relations. In Virginia this does not necessarily mean separate households, but it makes our job harder to prove separation to the Court if the parties are still living under one roof. Renewing physical relations destroys your grounds for divorce. Reconciliation after a divorce may have tax consequences you need to explore.
The spouse who files for divorce must have been a bona fide resident and domiciliary of Virginia for six months.
Contested vs. Uncontested Divorce
Divorces in Virginia can be "contested", which requires adversarial proof, or they can be "uncontested" (which are usually based on a mutual and voluntary separation of at least six months).
- Uncontested Divorce. If the parties agree to be divorced, you must have a written Separation Agreement that makes adequate and sufficient provisions in writing for the custody and support of the minor children of the marriage and makes a fair and equitable division of your property. If there are no children, and an agreement, you can file for divorce with six month's separation. If there are children, or you and your spouse cannot reach an agreement, you have to be separated for at least one year. There are also additional technical requirements, but the Separation Agreement is the essence of an uncontested divorce. As for assessing fault for the marriage breakdown, you only need to say that differences have arisen that will prevent you from living together as husband and wife, there is no hope of reconciliation and you intend to end the marriage.
- Contested Divorce. A contested divorce is a case in which the parties cannot agree on one or more points (property division, alimony, custody, child support, or attorney's fees). Even when parties have lived separate and apart for six months, and wish to be divorced but cannot agree to the terms of financial settlement, or custody, it is still a contested divorce.
There some defenses to common grounds for divorce. Because the law does not wish to force people to stay married when they’re incompatible, these defenses are often difficult to prove:
- Defense: Condonation. Knowing what your spouse did wrong but forgiving him or her anyway; this is usually proven by showing that you and your spouse had sexual relations after you found out what your spouse did.
- Defense: Insanity. If the person who is guilty of the grounds for divorce was insane when he or she committed the act.
There is no such term as a legal separation in Virginia. However, you may obtain a limited divorce, also called a "divorce a mensa et thoro" (from bed and board). A limited divorce may have some advantages in certain cases, for example, remaining on health insurance, or tax benefits. A limited divorce also requires that you have grounds. The grounds for a limited divorce are different than the grounds required for a final divorce, and they are: desertion or abandonment, or cruelty.
A divorce is commenced by filing a "complaint." (The spouse who files is the "plaintiff;" the other spouse is the "defendant.") The complaint states that the plaintiff has met the residency requirement in Virginia, as well as stating the date and place of marriage, the name and birth dates of any minor children, and a claim of one of the statutory grounds for divorce. The plaintiff serves (deliver the papers to) the defendant. If a plaintiff can’t personally sere the papers, a court order may be granted to publish the service of process in a newspaper. The defendant files an "answer" admitting or denying the allegations. The defendant may also raise any defenses or file counterclaims.
Most likely the next document drawn up in a case will be a proposed separation agreement -- an indication that the parties wish to settle their dispute. The separation agreement in Virginia covers the following issues:
- Court cost and attorney's fees. Who pays?
- Property. Who gets the house? Who gets the note? How does the equity get divided if it is sold?
- Personal property. Who gets which car, what appliances, and what happens to the sofa in the den?
- Retirement. What happens to any retirement benefits that have accrued?
- Debts. Who pays what? Should the debts be paid off by refinancing?
- Alimony. How much? How long?
- Custody. Who gets which child? Should any aspects of custody be shared? The noncustodial parent may be the one who is a doctor and may be the one who should make medical decisions. Will joint custody work?
- Child support. How much? How long? Who carries health or life insurance on children? Who gets to claim the children as income tax deductions? Private school or college tuition?
- Visitation. Do you want a specific schedule or can you and your spouse work together on it?
- Insurance-Life insurance. Who is insured? Who is the beneficiary? Term or cash value? How much?
- Insurance-Health insurance. Who is covered? In many cases an employee's spouse can be covered up to thirty-six months after the divorce by the employed spouse's insurance for an additional premium. Sometimes one parent's health coverage is cheaper than the other's and the cost differential can be reimbursed in other ways.
- Other. Security for obligations in the agreement, for wills, for death, and for taxes.
Uncontested divorces usually take two to three months, after filing in our experience, and contested divorces can take up to eighteen months. D If you have gone through a contested divorce, and if there is no appeal, your divorce will be final thirty days after the judge signs the final decree.
The Virginia legislature has set out criteria for alimony, child support, and property division.
- Find and value the property (equity in the house, value of pensions, value of antique furniture).
- Determine whether the particular piece of property is separate property and remains with the person who owned it.
- Separate property is usually acquired before the marriage or outside the marriage, such as by gift or inheritance, or is excluded by a valid agreement.
- Marital property is usually acquired during the marriage. To determine who gets what marital property, the court will consider: length of the marriage, age, health, skills, and abilities of the parties, amount of separate property owned by each spouse, relative ability of the parties to acquire property in the future, financial needs and liabilities of the parties, contribution to the education or to the earning power of the other, contribution to the value of the marital property or the separate property, premarital property and postmarital property, financial conditions of each party, and tax consequences.
- Use and Possession. Allowing the custodian and children to continue to live in the home permanently or for a period of time.
Alimony (spousal support) in Virgina can be periodic payments for a defined period or an indefinite basis. The law also allows for lump sum alimony. If temporary alimony cannot bring about rehabilitation, then the court can, in proper circumstances, order alimony on a long-term or indefinite basis. Indefinite alimony is granted less often these days. Technically, husbands can get alimony from wives, but it almost never happens. Alimony is based upon the relative needs and resources of the parties. The legislature set out criteria for the court to consider and they include the following: income from salaries, investments, etc, pension profit-sharing, and retirement plans, education and ability of the parties. as well as opportunities for additional education, length of the marriage, age, physical condition, and mental condition of the two parties, whether or not one of the parties should stay at home with the child of the parties instead of working, separate property a person has, marital property a person has, standard of living the parties enjoyed during the marriage, tangible and intangible contributions such as contributions of a homemaker and the tangible and intangible contributions of one party to the education, age, or increased earning power of the other party, fault of one of the parties (if the court wants to), and tax consequences. If you do not get alimony at the time of the divorce, you cannot get alimony later on. Living with someone after the divorce, regardless of whether you have sex or not, may cause indefinite alimony to be lowered or stopped. Death of one of the persons paying or receiving alimony or marriage of the person receiving alimony will terminate alimony unless the divorce settlement agreement provides otherwise. The court can require a bond or put a lien on property to ensure the payment of alimony or child support.
If you cover your spouse or children on your insurance, do not drop them from the policy at least until the divorce is final. A federal law allows most employees to cover their spouses for up to thirty-six months for a small additional premium. However, the employer must be notified prior to the Final Decree.
Custody, Child Support and Visitation
The legal standard in deciding who will get custody is what is in the best interest of the children. There are also certain doctrines and presumptions (but not inflexible rules or requirements) which aid the court in determining the best interest of the child:
- Parental rights. Parents must be shown to be unfit before the children will be given to someone else, such as grandparents.
- Continuity of placement. If children are doing well where they are, do not mess things up by moving them.
- Children's preference. A judge will consider who the children want to live with. The judge may talk to the child in private and may talk to a child younger than fourteen years of age. The judge is not bound by what the child wants.
- Other. The court can consider the custodian's age, health, wealth, religious beliefs, conduct, type of home, psychological evaluations; the location of the residences of the child's siblings; the child's school performance; or anything else the court considers important.
In arriving at a fair amount of child support, the court will look at the needs of the children; and the financial assets, earnings, and needs of each parent. Virgini has enacted child support guidelines. These are based on the relative and combined income of the parties, the number of children, and the time spent with the children. You probably will not have to pay more than half of your net income in combined alimony and child support. Net income is total income less taxes and other child support payments. The guidelines provide for an adjustment for health insurance and day care for the children and assume that the non-custodial parent pays for the children during normal visitation. If there are any extraordinary expenses (medical, educational, etc.) then the support could be higher than the guidelines.
Visitation. If the mother and father can agree on visitation, the court will usually approve the plan. A typical pattern is alternating weekends, a few weeks in the summer, and alternating holidays. If the parties are far apart, this pattern will not work. The pattern then calls for fewer but longer visitation periods. If the parties live very far apart, you must deal with who will provide or pay for transportation. The courts encourage visitation (and we do, too) except in very extraordinary circumstances.
You should create new will after a divorce. Even though you are separated, if you were to die your spouse would still inherit unless you have executed a new will providing otherwise. If you have given your spouse a power of attorney, cancel it as soon as possible. Until you do, your spouse has control over your property and can sell it or give it away.
In Virgina, a woman may go back to using her maiden name at any time as a matter of right. However, sometimes it is hard to convince the Social Security Administration or other entities that she has legally returned to her maiden name. A woman can have the court order the restoration of her maiden name in the final decree, even if she is not the complainant. Some of our clients wish to go back to their maiden name when there are no children, or go back to a former married name when there are children of that former marriage.