What is an absolute divorce in Virginia?
Virginia allows spouses to obtain one of two forms of divorce. The most common is the “absolute divorce," which legally terminates the marriage along with all of the rights and privileges that accompany it. A judge can only grant an absolute divorce on one of three fault grounds or through a no-fault separation of at least one year (or six months if there are no children from the marriage).
In contrast, a “bed and board” divorce is like a permanent separation. Similar to absolute divorce, the couple's marital rights and privileges are terminated, but neither spouse may remarry during the other's lifetime. So, for example, if a couple obtains a bed and board divorce, any property they acquire after the divorce is not considered marital property (see below). However, so long as the other spouse is living, neither spouse may remarry.
Bed and board divorces are uncommon and are usually used by spouses who have a religious conviction against divorce. They may also be used for tax purposes until the couple can obtain an absolute divorce. A unique aspect of the bed and board divorce is that if the couple reconciles, they can simply file a request with the court, and the judge will revoke the divorce.
How do I start the divorce process?
A divorce is started by one spouse, the plaintiff, filing legal paperwork called a “Bill of Complaint” for divorce. In the complaint, the plaintiff must state the "grounds" or reason(s) for the divorce and show that all the statutory (legal) and jurisdictional (meaning whether the court has authority to hear the case) requirements have been met in order for the court to grant a divorce.
The fault grounds in Virgina are:
- conviction of a felony after marriage
- cruelty, and
- desertion for a period of at least one year.
To prove a ground for divorce, there must be “corroborating evidence,” which means that someone in addition to the alleging spouse must testify to the fault or separation. A finding that one spouse was “at fault” may impact spousal support awards and equitable distribution of property.
After filing, the plaintiff has to "serve" the other spouse, the defendant, with the complaint; this just means that the plaintiff must make sure his or her spouse receives a copy of the divorce paperwork by personal delivery or another approved method of service. The plaintiff can serve the defendant by using the local sheriff’s department or a private process server. Alternatively, the defendant can agree to accept service in court or waive service by filing an "Answer," or response to the complaint.
If the plaintiff has filed for divorce based on no-fault separation grounds, the couple may be able to resolve the matter through one of several methods of alternative dispute resolution, such as mediation, rather than going to trial before a judge.
Is there a residency requirement?
In order to file for divorce in Virginia, at least one spouse must have been a resident of Virginia for at least six months.
How do courts divide property in a divorce?
Divorce courts decide many issues other than just the divorce, including how to divide a couple's property. Virginia is an "equitable distribution" state, which means Virginia courts will equitably or fairly divide marital assets acquired during the marriage, regardless of whether a spouse made monetary or nonmonetary contributions to the property or the marriage. Property can be real or personal, tangible or intangible and includes a variety of assets, such as homes, furniture, pensions, clothing, cash, bank accounts, stocks, and even pets.
In order to decide how to distribute property, a judge will first determine the ownership and value of each spouse's property. Second, the judge will determine the "character" of the property - whether it's separate, marital, or “hybrid” - meaning part marital and part separate property.
Separate property includes:
- property acquired by a spouse before the marriage or after the separation
- gifts from someone other than the spouse
- an inheritance to one spouse, and
- the proceeds of the sale of separate property, if maintained separately.
Marital property includes property titled jointly - in both spouses' names - and all property acquired by either spouse during the marriage (unless it's separate property).
Hybrid property includes property that was obtained with both marital and separate property, and separate property that increased in value during the marriage by the other spouse’s efforts.
Once character is determined, the judge will equitably distribute all marital property and any portion of property that is part marital. The judge can divide or transfer marital property, or grant a monetary award to either spouse.
With equitable distribution, judges are not required to divide property equally (50/50) - but rather in a way the judge believes is fair, given the circumstances of the case. To do so, the judge must consider the following factors and distribute the property accordingly:
- both spouses' contributions (monetary and nonmonetary) to their family's well-being
- both spouses' contributions (monetary and nonmonetary) to the acquisition, care, and maintenance of marital property
- the length of the marriage
- the spouses' ages and physical and mental conditions
- the circumstances that contributed to the divorce, specifically any misconduct or fault
- how and when specific items of property were acquired
- each spouse's debts and liabilities and the property which may serve as security for such debts and liabilities
- the liquid or non-liquid character of the marital property
- the tax consequences to each spouse from a proposed distribution
- either spouse's use of marital property for a non-marital, separate purpose or the use of such funds in anticipation of divorce or separation, and
- any other factors the court believes are appropriate to consider in order to make a fair and equitable award.
Remember, if the spouses can agree between themselves to the distribution of property through mediation or negotiation, the judge will accept their agreement rather than carry out the equitable distribution process in court. However, if the couple agrees on the division of only some property, the judge will have to determine the equitable distribution of the rest of the spouses' property, taking their agreement into consideration.
For the text of the statute governing absolute divorce, see Va. Code Ann. § 20-91.
For the text of the statute governing bed and board divorce, see Va. Code Ann. § 20-95.
For the text of the statute governing equitable distribution of property, see Va. Code Ann. § 20-107.3.
Click here for the Virginia State Bar Association’s webpage, which provides useful information about divorce and property distribution in Virginia.