A Guide to Divorce in Virginia

The end of matrimony can be a stressful, unpleasant time that can do irreparable damage to relationships and even your personal psyche. Sometimes, however, it can also be a time for celebration if one manages to escape an abusive spouse.

Either way, it requires hours of paperwork and can be time-consuming, particularly if the divorce is contested. Learn how to get a divorce in Virginia and decide whether or not hiring an attorney from Melone Hatley, P.C. is the right move for you.

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.

Which Court Handles Divorces in Virginia?

In the Commonwealth of Virginia, the Circuit Court handles all issues of family law and family matters relating to divorce. This includes divorce cases.

What Is a Separation Agreement, and Why Is It Important?

When ending matrimony, a separation agreement serves two purposes in Virginia. The first is to outline the responsibilities of both parties in the separation. The second is to show that both spouses agree to the separation and these responsibilities.

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.

What Does a Virginia Uncontested Divorce Process Look Like?

There are two types of divorce under Virginia divorce laws: contested and uncontested. An uncontested divorce, or no-fault divorce, is the most accessible type of divorce in Virginia. It tends to go the fastest, can preserve some of the relationship, and is the least expensive in terms of filing fee expenses and legal costs. In some cases, online divorce papers may be filed for these types of separation. The steps for an uncontested divorce include:

1.     Marital separation agreement
2.     Physical separation
3.     Report of annulment
4.     Notification of spouse
5.     Deposition or Affidavit

In an uncontested divorce, many couples decide to proceed pro se, or without the assistance of lawyers.

Marital Separation Agreement

The marital separation agreement will serve as the divorce papers for the uncontested divorce. The couple must meet specific residency requirements before these papers can be filed.

Physical Separation

The couple must live separately for at least six months. It is possible in some cases to live under the same roof, but the couple must not have any domestic relations. They maintain separate lives and do not sleep in the same bed at any point. The separation forms a waiting period where the couple has a chance to breathe and be sure the divorce is in their best interests.

Report of Annulment

A report of annulment is also called an absolute divorce. It means that in the eyes of the law, not only are the couple split, but the marriage never happened. This requires particular grounds such as fraud, incest, bigamy, lack of consent, force, or other acts on the part of one or both spouses.

Notification of Spouse

The spouse petitioning for the divorce must serve notice to the other spouse in writing. This is called Service of Process. The spouse has 21 days to respond or can opt for a waiver.

Deposition or Affidavit

Deposition or affidavit is the easiest way to finalize a divorce. A spoken deposition in the presence of an attorney about intent to end the marriage is made, which is recorded, signed, and filed with the court. An affidavit is the same idea but is a written declaration instead of a spoken one. These tend to be the least complicated and most straightforward means of dissolving a marriage.

Where Does the Uncontested Divorce Process Differ From Contested Divorce?

In a contested divorce, the spouses disagree on at least one aspect of the divorce. Contested divorces in Virginia differ wildly in how long they take to resolve, the expenses, and the damage they can cause to relationships and the family. No two divorces are the same in this regard, and no two divorce cases take the same amount of time to finalize. In general, these cases are not eligible for online divorce.

Sometimes contested divorces are fault-based, requiring fault grounds for divorce like bodily harm, desertion, adultery, buggery, sodomy, and other types of unnatural sexual acts. In Virginia, it is not required to claim fault in order to get a divorce. If the parties are unable to agree on a property settlement agreement, child custody and visitation, or another issues, the court can grant the divorce on one year of separation.

In general, the differences between the contested divorce and uncontested divorce are:

1.     File and serve a petition of divorce
2.     Hire attorneys, if needed
3.     Divorce discovery period
4.     Settlement proposals
5.     Trial if proposals are rejected
6.     Filing of appeals, if necessary

File and Serve Divorce Petition

The spouse who wants a divorce must file a Petition for Divorce with the circuit court. These divorce forms are the beginning of the process. They must then serve a copy of this divorce complaint or petition to the other spouse. This is called service of process and begins the proceedings.

Hire Attorneys If Needed

Depending on how contested the divorce is, you may need to hire attorneys. In general, it is a good idea to have a Virginia divorce attorney if you are proceeding with a contested divorce. Whether you are the petitioning spouse or the spouse being served, an attorney can help to streamline the process while protecting your interests. The slightest mistake in divorce proceedings can be extremely costly, and it is important to have an ally who knows how to navigate the legal waters and ensure that you get an equitable split of assets and property, while potentially protecting your parental rights.

Divorce Discovery

Both sides have an opportunity to build a case for what they are entitled to receive. This is called discovery and involves gathering records and evidence, investigating the other side’s claims, and getting your argument together. Discovery is among the essential parts of your divorce settlement as it allows you to construct a valid claim for the assets you deserve.

Settlement Proposals

Each side in the contested divorce will generally issue a proposal for settlement, outlining why they think their side is entitled to what they are asking to get. The other side will then counter, usually picking apart the reasons for the settlement proposals. This begins a back-and-forth series of negotiations between the parties or their legal representatives. Hopefully, in the end, the two ex-spouses can come to an agreement that satisfies both.

Trial if Proposals Are Rejected

If negotiations break down, it becomes necessary to go to trial, which in Virginia would be a bench trial. In a bench trial, the couple has a court hearing before a judge, who hears arguments and makes a final decision. Few parties are involved besides the couple, lawyers, and the judge.

Filing of Appeals, If Necessary

In many cases, the court’s final order is the end of the divorce. The final decree of divorce is filed with the court clerk’s office. In some cases, however, one party may not agree with the decisions issued, and, in these cases, appeals can be filed, which can lead to more trials and court hearings.

What Happens to Children in a Virginia Divorce?

If the divorce is contested, and has to go to court, the judge will decide on who gets physical and legal custody of the children. The court will also determine issues of child support. If the couple can agree on matters of child custody and child support, this will be honored in their separation agreement when the final divorce papers are filed.

The courts always consider the best interests of the child, each parent’s ability to offer moral, ethical, and practical guidance, and provide financial security. The courts will also, if the children are of a certain age, consider the child’s desires. Ultimately, what the courts feel is best for the child overrides what the parents want.

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

In most cases, the court will establish custody and visitation so that both parents are involved in the child’s life. If you and your spouse can not come to an agreement on splitting time, the courts will do that for you.

Will I need to pay child support? Will I receive child support?

It is possible for either parent to pay child support. The court will consider the custody arrangement, expenses, and income when making this decision. State child support guidelines are only guidelines. They help determine the amount of child support, but the court may find grounds for a deviation and require more or less support than the guidelines suggest.

As with custody arrangements, child support payments may be modified anytime there is a change in circumstances.

What Is Equitable Distribution in Virginia?

Equitable distribution is how assets and marital property are divided in Virginia divorces. In legal terms, this does not mean “equal.” Instead, it means “fair”. Division of property, alimony, spousal support, child support, and other property division considers the needs and abilities of both parties, contributions to the marriage, employability, standard of living, any necessary training to allow one or both parties to be independent, the needs of children, and many other factors.

Marital property also includes debts accrued during the marriage that affect both parties, such as a mortgage, car payments, credit card bills, and the like. Any debts, however, that were incurred outside of the marriage, such as student loans accrued before the couple was married, are not considered part of the marital property.

Thinking of Getting a Divorce? It Might Not Be as Simple as You Think

The divorce process can be exceptionally complicated, contentious, and messy. It can damage relationships, harm children, and get expensive and drawn out. A divorce lawyer can provide legal advice, legal aid, guidance on family law and fault grounds, and help to smooth over divorce proceedings. Whether your Virginia divorce is contested or uncontested, contact Melone Hatley, P.C.. at 800.479.8124 or complete our online contact form to speak with a member of our team about your case.