If you’re filing for divorce in Virginia, you likely have many questions. Should I file for a no-fault or fault-based divorce? Who will get custody of my children? Am I eligible for an annulment instead of a divorce? At Melone Law, P.C., we understand how complex and emotionally charged divorce can be. That’s why we’ve created this FAQ guide about divorce in Virginia to answer your questions.
What constitutes grounds for divorce in Virginia?There are six grounds for divorce in Virginia. Two fall under the category of a no-fault divorce and four fall under the category of a fault-based divorce. To meet the grounds for a no-fault divorce, a couple must be able to show a period of separation for one year. If the couple has no minor children and has executed a written property settlement agreement, the separation period required is 6 months instead of one year. The grounds for a fault-based divorce are more complex. Adultery serves as a grounds for a fault-based divorce, if it has occurred within the last 5 years. However, couples cannot continue to live together once one party has knowledge that the adultery took place. Desertion and a separation period of at least a year also constitute grounds for divorce. One party must have left the marriage and house without an understandable reason, such as adultery or abuse. You may also file for a fault-based divorce under the grounds of a conviction of a felony only if the spouse has been convicted and spent a year or more in a penitentiary. Finally, cruelty (physical, emotional, and/or mental abuse) and a separation period of a year may also be used as grounds.
Can we get an annulment instead?First, it’s important to understand that an annulment is quite different from a divorce. This legal decree marks the marriage as void. You must be able to prove that you entered into the marriage because of fraud, coercion, or some other form of dishonesty on the part of your spouse. Other potential grounds for an annulment include incompetence, impotence, incest, bigamy, or felony conviction.
How long should our separation last before filing?It depends on the grounds of your divorce. If you are filing for a no-fault divorce, you will need to be separated for a period of 6 months to a year prior to filing for a divorce. As for a fault-based divorce, it is best to review the type of grounds of your divorce and the individual requirements with a family law attorney.
Who will receive custody?There’s no way to determine in advance who will receive custody of your children before the divorce proceedings take place. If you and your spouse can’t reach an agreement about custody and visitation, it will be up to the judge to make a determination. Courts always look for a solution that will meet the best interests of the child. There are several different types of custody, ranging from joint custody to sole legal custody. Custody rights may also be changed or modified after the divorce. Courts take a look at several factors when awarding custody including, but not limited to:
- The child’s needs
- Age of the child
- Age of each parent
- Relationship between child and each parent
- Physical and mental health of each parent
- Home environment of each parent