The idea of filing for divorce may be overwhelming. Naturally, people may worry about finances, children, and where to live. On top of that, the actual process of filing for divorce may seem daunting. The process itself doesn’t always need to be complicated. Additionally, consulting a family law attorney may also help prepare individuals for how the process will go and what to expect. Below, is a quick primer on things an individual should know about getting divorced in Virginia.
#1. How to File for Divorce in Virginia
An individual must be a legal resident in Virginia for at least 6 months before filing for divorce. If the couple has minor children, they must be separated for one year before filing for divorce. If the couple doesn’t have children, they can file for divorce after living separately for 6 months, if both spouses enter into a separation agreement establishing how property will be divided.
Filing for divorce in Virginia generally consists of filing certain forms with your local circuit court. Each county has their own rules and may have different forms so it’s best to get the required forms from your local courthouse in person or from their website. Filing these forms starts the divorce process. After an individual files the divorce forms, their spouse needs to be “served.” This means that the spouse receives copies of the divorce papers filed so they have proper notice of the divorce request, referred to as “service of process.”
#2. Grounds for Divorce in Virginia
In Virginia, the person filing for divorce needs to have “grounds” for divorce. The fault grounds authorized in Virginia include: adultery, felony, cruelty, and desertion. Alternatively, a spouse may file for “no-fault divorce” after separation.
- Adultery – In Virginia, adultery constitutes grounds for divorce, but requires corroboration of evidence of one spouse having intimate relations with a party outside the marriage.
- Felony – A spouse can also file for divorce if the other spouse is convicted of a felony after the marriage, which resulted in confinement for at least one year.
- Cruelty – An individual can file for divorce if his or her spouse is guilty of cruelty or caused reasonable apprehension of bodily hurt. Cruelty typically requires conduct that causes bodily harm or fear of bodily harm and makes living together unsafe.
- Desertion – A spouse may also file for divorce if he or she was willfully deserted or abandoned by the other spouse. Desertion requires a spouse to willfully separate from the other spouse without justification with the intent to remain separated permanently.
- Separation – A spouse may file for divorce after being separated and living apart for one year, if the couple has minor children, or 6 months, if the couple doesn’t have minor children and enters into a separation agreement.
#3. A Couple Can Have an Uncontested Divorce
If both spouses agree on all divorce matters, the divorce is “uncontested.” Uncontested divorces are typically settled quicker and less expensive. To seek an uncontested divorce, the parties must agree to file for a “no-fault” divorce, meaning that it’s not either spouse’s fault that the marriage is ending. To file for an uncontested divorce, one spouse must complete and submit specific forms to the court.
To be eligible to obtain an uncontested divorce, both spouses need to agree on every issue of the divorce. This includes issues regarding property and children. A joint separation agreement will need to be signed by both spouses, which divides up a couple’s assets and responsibilities following the divorce. Additionally, if the couple has minor children, they must also include provisions about visitation, custody, child support, and insurance coverage for the children.
Some uncontested divorces in Virginia will be heard in court, while others can be heard through a deposition or affidavit. You can typically avoid having to go to court if you request to have a hearing by deposition or affidavit and submit additional documents.
#4. Virginia Follows the “Equitable Distribution” Method of Property Division
In Virginia, in the event of a divorce, courts follow the equitable distribution method of dividing property. Under equitable distribution, courts will divide property “equitably,” or fairly, between spouses, but not necessarily evenly. Upon divorce, a couple’s property is classified as marital, separate, or part marital and part separate. Marital property is jointly-owned property and other property (other than separate property) obtained from the date of marriage through separation. Marital property is subject to equitable distribution during a divorce proceeding. Separate property is all property acquired by one spouse prior to marriage and property obtained during marriage by inheritance or gift (other than a gift by a spouse). Separate property does not get divided by the court and instead remains with the spouse that acquired it. Courts will also classify and divide any marital debt the same way as marital property. Courts will consider a list of factors to determine how to divide marital assets and debts.
#5. How Child Custody and Visitation is Determined
In Virginia there are two types of child custody: legal custody and physical custody. Physical custody refers to where a child spends the majority of his or her time. Legal custody refers to the right to make important health, education, and welfare decisions for a child.
A parent may have sole custody of a child or share joint custody between both parents. With sole legal custody, one person retains responsibility for the care and control of a child and has primary authority to make decisions concerning the child. Sole physical custody means one the child resides with the custodial parent. The non-custodial parent may have visitation rights. Joint legal custody means both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child. Joint physical custody means both parents share physical custody of the child, although not necessary share equally. In Virginia, joint custody is awarded more commonly.
Custody and visitation matters can be settled through negotiation or mediation between the parties. However, if the parents are unable to agree, they may petition the court to decide these issues. Even if the parties enter into an agreement establishing custody, visitation, and child support matters, the court must approve the agreement. If the court is tasked with determining a custody arrangement, discovery may take place, during which the parties may seek answers to questions and request documents. Drug tests and substance abuse evaluations may be required, as well as psychological evaluations of the parties and children.
When making custody or visitation decisions, courts will determine what is in the best interests of the child. The Virginia Code lists multiple factors for courts to consider when deciding what is in the best interests of the child, including: the age and physical and mental condition of the child and each parent; the relationship existing between each parent and each child; the needs of the child; and the reasonable preference of the child.
#6. How Child Support is Determined
In Virginia, both parents are required to support their children. Since Virginia law assumes the parent with primary custody is already supporting any children, the parent without primary custody is typically required to pay child support to the parent with primary custody. The Virginia Code sets out the guidelines used for determining child support obligations. The guidelines consider the number of children that need support and the parents’ combined monthly gross income, as well as custody arrangements.
- Sole Custody – if one parent has sole custody of all children, the child support owed is based on the proportion of each parent’s income to the combined income.
- Split Custody – if one child lives with one parent and the other child lives with the other parent, the support owed is the difference between the amounts owed by each parent as a noncustodial parent according to respective “sole custody” calculations.
- Shared Custody – if parents share custody of a child, the support owed is based on the percentage of days per year the child is with each parent.
Courts typically follow the guidelines set out in the Virginia Code when determining a child support obligation. However, a parent can request a deviation from the guidelines and ask the court to raise or lower that amount. When making such a determination, the court considers many factors, including:
- Monetary support for other family members or former family members;
- Custody arrangements, including cost of visitation travel;
- Court-ordered payments for maintaining life insurance coverage for the child, education expenses, or other court-ordered direct payments for the benefit of the child;
- Special needs of a child resulting from physical, emotional, or medical condition;
- Standard of living for the child established during the marriage; and
- Earning capacity, obligations, financial resources, and special needs of each parent.
#7. How Spousal Support is Determined
Courts have discretion when determining whether a spouse should receive support and what amount of support should be awarded. When making these determinations, courts consider many factors, including:
- The obligations, needs, and financial resources of the spouses;
- The standard of living established during the marriage;
- The duration of the marriage;
- The age and physical and mental condition of the spouses;
- The monetary and nonmonetary contributions of each spouse to the well-being of the family;
- The property interests of the spouses and division of property during divorce proceedings; and
- The earning capacity, including the skills, education and training of the spouses.
The court may also consider other factors, including circumstances that contributed to the dissolution of the marriage, such as any instances of adultery or other grounds for divorce. Spouses may also be barred from receiving spousal support, such as in divorce resulting from adultery.
#8. A Couple Can Enter into a Separation Agreement
If the spouses are able to agree on divorce related issues, they can enter into a separation agreement. A separation agreement establishes the parties’ rights and obligations regarding marital debts and assets after a divorce. If the couple has children, the separation agreement will likely also address child support and child custody and visitation issues. However, even if the parties agree on issues of child custody, support, and visitation in a separation agreement, the court must approve the agreement to ensure it is in the best interests of the child. The existence of a separation agreement provides the spouses greater control over the disposition of assets rather than letting the court decide. Separation agreements can also cover issues that the court doesn’t have jurisdiction over, such as post-secondary education expenses.
#9. Marital Agreements Will Likely be Enforced
Premarital, or prenuptial agreements, are agreements a couple enters into before getting married that become effective once the parties are married. The agreement can discuss issues such as what will be classified as separate and marital property, property division after a divorce, spousal support, and the allocation of labor and resources during the marriage. A premarital agreement can address child support and child custody and visitation issues for any future children, but the marital agreement may not be enforced later. If the parties separate, they can choose to abide by the terms they set in the agreement. However, in the event they disagree and the court becomes involved, the court will make child support and custody decisions based on what is in the best interests of the child, based on various factors, and not rely on the agreement.
#10. A Couple Can Choose an Alternative Dispute Resolution Method of Divorce
Not all divorces need to be contested and decided by a judge in a courtroom. Spouses that are more amicable can seek alternative dispute resolution rather than a court hearing. Instead of a hearing in front of a judge, spouses can proceed with a mediated divorce. Mediation is a process involving spouses attempting to resolve their disputes with the help of a third party, known as a mediator. Divorce mediation is more cost effective than divorce litigation in a courtroom, as well as usually speedier. Additionally, while the court process is adversarial, mediation typically helps spouses compromise, which helps speed up the process. There is also the added benefit that because mediation is less adversarial and involves less confrontation, spouses that choose mediation may leave the divorce more amicable, which is especially important if children are involved. Another benefit of mediation is privacy. Court proceedings of litigated divorces are public record, whereas the mediation process is not part of the public record and can be kept confidential. While mediation is the most common form of alternative dispute resolution in divorce matters, divorce arbitration is also available. Arbitration also involves a neutral third party outside of a courtroom, but is more similar to the traditional adversarial nature present in a courtroom.
Another method of divorce alternative dispute resolution is collaborative divorce. Collaborative divorce involves out of court sessions where spouses receive legal advice from attorneys trained in the collaborative process with the goal of an amicable and fair resolution for both parties. While it shares similarities with mediation in that it is often cheaper and faster than litigated divorce, collaborative divorce includes guidance from trained divorce lawyers. Collaborative divorce often includes a team of professionals, in addition to divorce attorneys, such as a mental health professional to assist with communication and child-related issues, and a financial professional to assist with collecting necessary financial information regarding assets and debts of the parties. This collaborative team works together with the spouses to work through emotional, financial, and legal issues to come to a mutual agreement of the parties’ rights and obligations after divorce.
Divorce may seem overwhelming, but it doesn’t have to be. An experienced family law attorney can help you prepare and guide you through the process. Family law attorneys at General Counsel, P.C. are experienced in all aspects of divorce and can help you navigate the process. Call us today at 703-991-7973 and see how we can help you.