Virginia Divorce Law

Virginia Divorce Laws

Residency Requirements:

One of the spouses must have been a resident of Virginia for at least 6 months prior to filing for divorce.

Place of Venue:

The divorce may be filed for in:

• The county or city in which the spouses last lived together; or at the option of the plaintiff,
• The county or city where the defendant resides, if the defendant is a resident of Virginia,
• Or, if the defendant is a non-resident of Virginia, the county or city where the plaintiff resides.

Grounds For Divorce:

Virginia divorce law requires that “grounds” (valid reasons for divorce prescribed by law) for divorce must exist and be proven to the court even if the husband and wife agree that a marriage should end. These grounds are:

Divorce From Bed and Bored:

• Willful desertion or abandonment.
• Cruelty and reasonable apprehension of bodily harm.

No-Fault Grounds:

Although separation provides a “faultless” ground for divorce, fault may still be an issue when spousal support (alimony) is being sought or can be a factor in determining the division of marital property. Further, a judge is free to award a divorce on fault grounds even though “no fault” separation grounds exist, conversely a judge free to award a “no fault divorce” even if fault grounds exist. Faults:

• Adultery, sodomy, or buggery.
• Conviction of a felony.

Spousal Support in Virginia:

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 under the provisions of subdivision (3) or (6) of § 20-91 or § 20-95. In determining the nature, amount and duration of an award pursuant to this section, the court shall consider the following:

1. 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;

2. The standard of living established during the marriage;

3. The duration of the marriage;

4. The age and physical and mental condition of the parties and any special circumstances of the family;

5. 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;

6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;

7. The property interests of the parties, both real and personal, tangible and intangible;

8. The provisions made with regard to the marital property under § 20-107.3;

9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;

10. 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;

11. 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;

12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and

13. Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

Child Custody in Virginia:

Custody is the care, control, and maintenance of a child. A child’s parents are both presumed to be the natural and proper custodians. However, the court may be asked to determine the custody of children in some circumstances. The best interest of the child guides the court’s decision. There are several types of custody:

• Joint legal custody is when both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child, even though the child’s primary residence may be with only one parent.
• Joint physical custody is where both parents share physical and custodial care of the child.
• Sole custody gives a parent the primary responsibility for the care of the child. That parent makes all the daily decision about his/her child’s life.

Child Support in Virginia:

In Virginia the follow factors are considered in establishing support:

1. Actual monetary support for other family members or former family members;

2. Arrangements regarding custody of the children, including the cost of visitation travel;

3. Imputed income to a party who is voluntarily unemployed or voluntarily under-employed; provided that income may not be imputed to the custodial parent when a child is not in school, child care services are not available and the cost of such child care services are not included in the computation and provided further, that any consideration of imputed income based on a change in a party’s employment shall be evaluated with consideration of the good faith and reasonableness of employment decisions made by the party;

4. Debts of either party arising during the marriage for the benefit of the child;

5. Direct payments ordered by the court for maintaining life insurance coverage pursuant to subsection D, education expenses, or other court-ordered direct payments for the benefit of the child;

6. Extraordinary capital gains such as capital gains resulting from the sale of the marital abode;

7. Any special needs of a child resulting from any physical, emotional, or medical condition;

8. Independent financial resources of the child or children;

9. Standard of living for the child or children established during the marriage;

10. Earning capacity, obligations, financial resources, and special needs of each parent;

11. Provisions made with regard to the marital property under § 20-107.3, where said property earns income or has an income-earning potential

12. Tax consequences to the parties including claims for exemptions, child tax credit, and child care credit for dependent children;

13. A written agreement, stipulation, consent order, or decree between the parties which includes the amount of child support; and

14. Such other factors as are necessary to consider the equities for the parents and children.

Property Distribution in Virginia:

Virginia statutes now provide for the “equitable” distribution of the marital property between the parties at the conclusion of the divorce. “Marital property” consists of all jointly-titled property as well as all other property, other than separate property, acquired by either or both of the parties from the date of the marriage through the time of the final separation. “Separate property” is property owned by one party prior to the marriage, property acquired after the parties have separated, inherited property and/or gifts to one party from a third person. Where “marital property” and “separate property” are mixed together or where the value of “separate property” is increased through the active efforts of either party during the marriage, then such property may be classified as “marital property” or as “part marital and part separate” property.

In equitably dividing the marital estate, the courts may order monetary awards to one of the parties, divide the property, order the property sold or transfer jointly-titled marital property to one of the parties. Under Virginia’s system of “equitable distribution,” the court is not required to divide the marital property on an equal basis. Instead, the court will consider various factors listed in the Virginia equitable distribution statute, including the relative monetary and non-monetary contributions of each of the parties to the well being of the family and to the acquisition and care of the marital property, when determining how to divide the marital assets. Pensions and retirement plans that were accumulated during the course of the marriage are also subject to division by the Court as part of its equitable distribution award. However, by statute, neither party can receive more than one-half of the amount of the other party’s pension or retirement plan that accumulated during the marriage.