Virginia Divorce Laws

Virginia Divorce Laws
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Virginia Divorce Laws

 

Residency Requirements and Where to File:

To file for a divorce, one of the parties must be and has been an actual bona fide resident and domiciliary of this Commonwealth for at least six months preceding the commencement of the suit. The circuit court shall have jurisdiction of suits for annulling or affirming marriage and for divorces, and claims for separate maintenance, and such suits shall be heard by the judge as equitable claims.

[Based on Code of Virginia, Title 20, Section 20-96]

Legal Grounds For Divorce:

A divorce may be granted on the following grounds in Virginia:

  • Living separate and apart without any cohabitation and without interruption for one year. If there are no children of the marriage, the time limit is six months.
  • Adultery
  • Where either of the parties subsequent to the marriage has been convicted of a felony, sentenced to confinement for more than one year and confined for such felony subsequent to such conviction, and cohabitation has not been resumed after knowledge of such confinement (in which case no pardon granted to the party so sentenced shall restore such party to his or her conjugal rights).
  • Where either party has been guilty of cruelty, caused reasonable apprehension of bodily hurt, or willfully deserted or abandoned the other, such divorce may be decreed to the innocent party after a period of one year from the date of such act.

    [Based on Code of Virginia, Title 20, Section 20-91]

    Legal Separation:

    A divorce from bed and board may be decreed for cruelty, reasonable apprehension of bodily hurt, willful desertion or abandonment. In granting a divorce from bed and board, the court may decree that the parties be perpetually separated and protected in their persons and property.

    Such decree shall operate upon property thereafter acquired, and upon the personal rights and legal capacities of the parties, as a decree for a divorce from the bond of matrimony, except that neither party shall marry again during the life of the other.

    In any case where a decree of divorce from bed and board has been granted, and the court shall determine that one year has elapsed since the event which gave rise to such divorce or, in any case where the parties have entered into a separation agreement and there are no minor children either born of the parties, born of either party and adopted by the other or adopted by both parties, that six months has elapsed since such event, and the parties have been separated without interruption since such divorce was granted and no reconciliation is probable, it may merge such decree into a decree for divorce from the bond of matrimony upon application of either party. [Based on Code of Virginia, Title 20, Sections 20.95, 20-116 and 20-121]

    Mediation or Counseling Requirements:

    The parties to any petition where a child whose custody, visitation, or support is contested shall show proof that they have attended within the 12 months prior to their court appearance or that they shall attend within 45 days thereafter an educational seminar or other like program conducted by a qualified person or organization approved by the court except that the court may require the parties to attend such seminar or program in uncontested cases only if the court finds good cause.

    [Based on Code of Virginia, Title 20, Section 20-103]

    Dividing Marital Property:

    Virginia is an equitable distribution state, meaning that if the parties can't agree, the marital property will be distributed in an equitable fashion, not necessarily equally. The amount of any division or transfer of jointly owned marital property, and the amount of any monetary award, the apportionment of marital debts, and the method of payment shall be determined by the court after consideration of the following factors:

    • The contributions, monetary and non-monetary, of each party to the well-being of the family.
    • The contributions, monetary and non-monetary, of each party in the acquisition and care and maintenance of such marital property of the parties.
    • The duration of the marriage.
    • The ages and physical and mental condition of the parties.
    • How and when specific items of such marital property were acquired.
    • The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities.
    • The liquid or non-liquid character of all marital property.
    • The tax consequences to each party.
    • The use or expenditure of marital property by either of the parties for a nonmarital separate purpose or the dissipation of such funds, when such was done in anticipation of divorce or separation or after the last separation of the parties.
    • Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.

    Separate property is (1) all property, real and personal, acquired by either party before the marriage; (2) all property acquired during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party; (3) all property acquired during the marriage in exchange for or from the proceeds of sale of separate property, provided that such property acquired during the marriage is maintained as separate property; and (4) that part of any property classified as separate property. [Based on Code of Virginia, Title 20, Section 20-107.3]

    Alimony / Spousal Support / Maintenance:

    The court, in its discretion, may decree that maintenance and support of a spouse be made in periodic payments for a defined duration, or in periodic payments for an undefined duration, or in a lump sum award, or in any combination thereof. The court, in determining whether to award support and maintenance for a spouse, shall consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery and any other ground for divorce.

    In determining the nature, amount and duration of an award pursuant to this section, the court shall consider the following:

    • The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature.
    • The standard of living established during the marriage.
    • The duration of the marriage.
    • The age and physical and mental condition of the parties and any special circumstances of the family.
    • The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home.
    • The contributions of each party to the well-being of the family.
    • The property interests of the parties, both real and personal, tangible and intangible.
    • The provisions made with regard to the marital property division.
    • The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity.
    • The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability.
    • The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market.
    • The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party.
    • Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

    [Based on Code of Virginia, Title 20, Section 20-107.1]

    Virginia Child Custody Laws:

    In determining custody, the court shall give primary consideration to the best interests of the child. The court shall assure minor children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children. As between the parents, there shall be no presumption or inference of law in favor of either, and the court may award joint custody or sole custody. In determining best interests of a child for purposes of determining custody or visitation arrangements, the court shall consider the following:

    • The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs.
    • The age and physical and mental condition of each parent.
    • The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child.
    • The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members.
    • The role that each parent has played and will play in the future, 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.
    • Such other factors as the court deems necessary and proper to the determination.

    [Based on Code of Virginia, Title 20, Section 20-124.2 and 124.3]

    Child Support:

    Virginia uses the "Income Shares" model as the base for determining child support. This method bases the level of support on the combined income of both parents. There shall be a rebuttable presumption in any judicial or administrative proceeding for child support, including cases involving split custody or shared custody, that the amount of the award which would result from the application of the guidelines is the correct amount of child support to be awarded. In any proceeding on the issue of determining child support, the court shall have the authority to order a party to provide health care coverage for dependent children if reasonable under all the circumstances and health care coverage for a spouse or former spouse. In any proceeding on the issue of determining child support, the court shall have the authority to order a party to:

    1. Maintain any existing life insurance policy on the life of either party provided the party so ordered has the right to designate a beneficiary.
    2. Designate a child or children of the parties as the beneficiary of all or a portion of such life insurance for so long as the party so ordered has a statutory obligation to pay child support for the child or children.

    [Based on Code of Virginia, Title 20, Section 20-108.1]

    Premarital Agreement:

    A premarital agreement shall be in writing and signed by both parties. Such agreement shall be enforceable without consideration and shall become effective upon marriage. [Based on Code of Virginia, Title 20, Section 20-149]]