Divorce in Virginia
Virginia law allows for divorce based on either fault-based or “no-fault” grounds. The fault-based grounds include adultery, cruelty (mental or physical), 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 Agreements in Virginia.
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. 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.
Spousal Support. 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.
Equitable Distribution. 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.
Military 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.
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.
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, relocation, modification, denial of visitation, grandparent custody and visitation, custody evaluators, guardians ad litem and home studies, see Child Custody and Visitation Law in Virginia.
Child Support. For more information on Virginia child support law, including application of the Virginia child support guidelines, what Virginia counts as income, enforcement, voluntary reduction of income and modification of support, see Child Support in Virginia.
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