Guide to Divorce in Virginia
Divorce can be stressful and overwhelming. The hardest thing to do is often simply knowing where to start. That’s why the attorneys at Livesay & Myers, P.C. have put together this Guide to Divorce in Virginia—to give you a roadmap for getting started. If you are facing a divorce in Virginia, the information below should point you in the right direction, and perhaps provide a little peace of mind in the process.
Grounds for Divorce
Virginia law allows for divorce on both fault-based and no-fault grounds.
The grounds for divorce in Virginia are:
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, including how to prove adultery, defenses to an adultery charge, and impact of adultery in a Virginia divorce, see Adultery and Divorce in Virginia.
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.
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.
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 six months (with no minor children) or twelve months (with minor children), either party may then file for divorce on the ground of separation. For more information, including how to distinguish between desertion and separation under Virginia law, see our Guide to Separation in Virginia.
Should You File for Divorce on Fault-Based or No-Fault Grounds?
It is not uncommon to qualify for a divorce on both fault-based and no-fault grounds. In deciding which ground to file on, it is important to understand the pros and cons of filing for divorce based on a fault-based ground in Virginia. For more information, see Should You File for Divorce Based on Fault in Virginia?
Defenses to Divorce in Virginia
Virginia law provides a number of potential defenses to a complaint for divorce. The defenses may be procedural in nature (lack of jurisdiction, etc.) or based on the conduct of the parties (recrimination, condonation, etc.). For more information, see Defenses to Divorce in Virginia.
Financial Steps to Take Before Divorce
Divorce is an emotional and stressful time in a person’s life. If you do not enter the divorce with the necessary financial information, the process may quickly become overwhelming. By taking certain actions at the start of your case, 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. Our divorce lawyers are intimately familiar with the factors considered by courts in establishing spousal support, and with the important tax consequences often intertwined with alimony. 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.
Pendente Lite Orders
Divorce can be a lengthy process in Virginia. In no-fault cases, Virginia law requires parties to be separated for at least twelve months, or for at least six months with a separation agreement and no minor children, prior to even filing for divorce. And contested or fault-based divorces can take much longer than no-fault cases—sometimes dragging on for years, depending on the jurisdiction and issues involved. However, in many cases the parties have very real needs that must be addressed prior to the final hearing in their divorce. Thankfully, Virginia law allows courts to enter orders granting “pendente lite” (pending final resolution) relief to address those needs. For more information, see Pendente Lite Orders 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 our Guide to Military Divorce 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 our Guide to Annulment in Virginia.
Child Custody and Visitation
Our attorneys are veterans of many tough custody battles, fighting on behalf of mothers, fathers and grandparents in custody cases across Northern Virginia. We have expertise both with initial custody determinations and also cases involving relocation of custodial parents or modification of prior court orders. 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 our Guide to Custody and Visitation in Virginia.
Child support cases in Virginia range from very simple matters involving routine application of the Virginia child support guidelines, to very complex cases involving the imputation of income to a party who is voluntarily unemployed or underemployed. Our attorneys are experienced in handling every type of child support case in the courts of Northern Virginia. For more information, including application of the Virginia child support guidelines, what Virginia counts as income, enforcement, voluntary reduction of income and modification of support, see our Guide to Child Support in Virginia.
Discovery is a pre-trial procedure for obtaining information and evidence from the other party or non-parties to a lawsuit. In Virginia divorce cases, discovery may include interrogatories, requests for admissions, requests for the production of documents, subpoenas and depositions. For more information, see Discovery in Virginia Family Law Cases.
Our Divorce Attorneys
Livesay & Myers, P.C. has a team of experienced divorce lawyers across five office locations: in Fairfax, Arlington, Ashburn, Manassas and Fredericksburg-Stafford. 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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