Divorce in Virginia
The highly-rated divorce lawyers at Livesay & Myers, P.C. represent clients in Fairfax, Manassas, Leesburg, Prince William, Loudoun, Fredericksburg, Stafford and all across Northern Virginia.
Grounds for Divorce
Virginia law allows for divorce based on either fault-based or “no-fault” grounds. The fault-based grounds include desertion (actual or “constructive”), adultery, desertion (actual or “constructive”), and felony conviction and confinement in excess of one year. The no-fault grounds are (1) separation for at least twelve months or (2) separation for at least six months, with a separation agreement and no minor children.
Contested vs. Uncontested. A “contested divorce” is one in which the parties are in disagreement about one or more issues, such as spousal support, child custody or visitation, child support, etc. A contested divorce is not necessarily a fault-based divorce; in fact, many contested divorces are filed on no-fault grounds. An “uncontested divorce” is one in which the parties have no outstanding custody, support, property, or other issues to be resolved. An uncontested divorce is almost always filed on the no-fault ground of separation.
Separation. Unlike many other states, Virginia does not have legal separations granted by courts. However, a married couple may enter into a separation agreement, stipulating that they will live apart and divide their property and debts in a certain way. These agreements usually resolve any other outstanding issues, such as child custody and visitation, child support and spousal support. With such an agreement in place, once the parties have separated and lived apart for the appropriate time (six months with no minor children, twelve months with minor children), either party may then file for divorce on the ground of separation. For more information, see Separation in Virginia.
Desertion. The desertion or abandonment ground requires proof that a spouse broke off the matrimonial cohabitation with an intent to desert. Desertion does not occur when the husband and wife mutually agree to separate. “Constructive desertion” may be found where a spouse refuses to engage in sexual intercourse, without justification, while also failing to fulfill other significant marital duties. A final divorce cannot be granted on the ground of desertion until one year has elapsed since the desertion or abandonment.
Adultery. The adultery ground for divorce requires proof by “clear and convincing evidence” of sexual intercourse outside the marriage. A divorce may also be granted on proof of sodomy or buggery committed outside the marriage. Unlike some other divorce grounds, there is no waiting period before filing on the ground of adultery. Adultery can be very difficult to prove, but if proven may have serious financial implications in the divorce, at least on the issue of spousal support. For more information, including how to prove adultery, defenses to an adultery charge, and impact of adultery in a Virginia divorce, see Adultery and Divorce in Virginia.
Cruelty. The cruelty ground requires proof of “cruelty or reasonable apprehension of bodily hurt.” Acts of physical violence and conduct that endanger the life, safety, or health of one’s spouse will constitute cruelty. Abusive language, humiliating statements, and repeated neglect can also constitute cruelty. While cruelty is typically proven by evidence of a succession of acts, a single act of cruelty is sufficient if it is a very serious act. A spouse’s abuse of alcohol does not constitute cruelty unless it is coupled with other misconduct. A final divorce cannot be granted on the ground of cruelty until one year has elapsed since the acts of cruelty.
Desertion vs. Separation. How does one live “separate and apart” to qualify for a no-fault divorce, without being found guilty of willful desertion or abandonment? Virginia courts distinguish desertion from separation by looking at the specific behavior of the parties. Courts have consistently found that one party moving out of the marital bedroom or even the marital residence does not by itself show that a desertion has occurred. Instead, a finding of desertion requires that one party has ceased performing their marital duties, which can include but are not limited to providing financial support or contributing to marital bills or debts, and providing emotional or physical support.
Separation, as distinguished from desertion, is separating from your spouse, either in the home or outside, while still operating under the rules and standards of the marriage, such as division of the marital obligations and duties. Usually, a separation and the terms of the separation are discussed and agreed, whereas a desertion is more of a unilateral action by one party, leaving the other party saddled with all the marital duties and obligations.
Ultimately, there is a thin line between desertion and separation under Virginia law. It is therefore important to discuss the specifics of your case with an experienced family law attorney before leaving your spouse.
Financial Steps to Take Before Divorce
Divorce is an emotional and overwhelming time in a person’s life. If you do not enter the divorce with the necessary financial information, the process may be even more overwhelming than anticipated. By taking certain actions at the start of the divorce process, you can protect yourself from future surprises, and potentially avoid a great deal of stress later on. For more information, see Four Financial Steps to Take Before Divorce.
Spousal support issues arise in divorces where the parties have been married for a substantial length of time and there is a significant gap in their incomes. In these cases, determination of a proper amount and duration of spousal support (called “alimony” in other states) can become very difficult. For more information, including how courts determine spousal support in Virginia, spousal support guidelines, and the tax consequences of spousal support, see Spousal Support in Virginia.
Virginia is an equitable distribution state, meaning that the court has the authority in any divorce to classify the property of the parties as separate, marital or hybrid, to distribute any jointly owned marital property between the parties, and to grant a monetary award to either party to ensure an “equitable distribution” of marital property and debts. For more information, including the distinction between marital and separate property in Virginia, the presumption of marital debt, and marital waste or dissipation of assets, see Equitable Distribution in Virginia.
The Marital Home
The marital home is often the most valuable property to address in a Virginia divorce. The parties have various options regarding how to deal with the marital residence. Should they sell it and split the proceeds? Should one party buy out the other, refinance the home, and keep it? For an examination of how to answer those questions under Virginia law, see The Marital Home: The Sticky Wicket in Many Divorces.
Federal Retirement Division
When facing divorce, both federal civilian government employees and their spouses need to be familiar with how their retirement accounts are structured, funded, and ultimately, how they could be affected by a divorce. For information on how Virginia courts treat federal retirement benefits in divorce, including Federal Employee Retirement System (FERS), Thrift Savings Plan (TSP) and Social Security, see Federal Retirement Division in Virginia Divorce.
Military divorce cases involve a complex intersection of federal and state law, offering special challenges for divorcing servicemembers, spouses, and their attorneys. For more information on military divorce, including retired pay, disability pay, Servicemembers Civil Relief Act, Survivor Benefit Plan and Tricare benefits, see Military Divorce Law in Virginia.
Annulment vs. Divorce
Many times when it becomes obvious that a marriage is heading towards failure, the question arises whether it would be best to seek an annulment or a divorce. To answer that question, one must first understand how annulment differs from divorce, and the different remedies a court may award upon a divorce vs. upon an annulment. For more information, see Annulment vs. Divorce in Virginia.
Child Custody and Visitation
Divorce cases involving minor children raise issues of child custody and visitation. For more information on Virginia custody and visitation law, including the types of custody in Virginia, modification, relocation, custody evaluators, grandparent custody and visitation, denial of visitation, home studies and guardians ad litem, see Child Custody and Visitation Law in Virginia.
For more information on Virginia child support law, including what Virginia counts as income, application of the Virginia child support guidelines, modification of support, voluntary reduction of income, and enforcement, see Child Support in Virginia.
Our Divorce Attorneys
Livesay & Myers, P.C. has a team of experienced divorce attorneys in Northern Virginia, each of them practicing exclusively family law. Be sure to read our client reviews, then examine the profiles of each of our attorneys to find the one who is the best fit for you.
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