Virginia Beach Divorce Attorney

In Virginia, divorce is categorized as either contested or uncontested, depending on whether you and your spouse can agree on your divorce settlement terms. These terms include how you will divide your marital property, how you will share the custody of your children, who will pay child support, and if spousal support will be necessary.

Uncontested Divorce

If you and your spouse agree to all of these terms, especially if you have set them out in a signed separation agreement, an uncontested divorce is often quicker to resolve and more cost-effective to pursue. Uncontested divorces also allow divorcing spouses to maintain more control over their outcome since they don’t require the court to make decisions for them.

If you aren’t at the point where you have agreed on all terms but are willing to negotiate and cooperate, you may still find an uncontested divorce an option. However, it’s important to note that uncontested divorces may not be ideal for everyone. When there are significant power imbalances between spouses, complex or potential hidden assets, or if marital misconduct plays a role, court intervention may be necessary to ensure a fair outcome.

Contested Divorce

A contested divorce occurs when spouses are unable to agree on one or more important issues, such as finances, property division, or child custody. If no agreement is reached, the divorce proceeds to court hearings or a trial, and a judge will make the final decisions after considering each spouse’s perspective.

A contested divorce can be based on either no-fault or fault-based grounds. Because contested divorces require resolving disputes, often through the court process, they typically take longer and involve more legal work, which can increase the overall expense. The good news is that spouses can still come to a mutual agreement at any point before the matter moves to court.

At Melone Hatley, P.C., we work with you every step of the way to fully understand your goals and help you decide on the best course of action for your specific situation. Whether you pursue an uncontested or contested divorce, our Virginia Beach family lawyers are here to advocate for the best outcome for you and your family.

Grounds are the legally recognized reasons you can seek a divorce in Virginia. Virginia law recognizes two primary types of grounds: no-fault and fault-based. Understanding the difference is critical as each type will involve different procedures and evidentiary standards.

No-Fault Divorce

A no-fault divorce is based on a period of separation instead of misconduct by either party. To file for a no-fault divorce in Virginia, spouses must live separate and apart for a specified duration without cohabitation as follows:

• Spouses with minor children must live apart for at least one year to file for a no-fault divorce.
• Spouses without minor children can seek a divorce after living apart for six months, provided they have agreed to and signed a separation agreement.

No-fault divorces are typically more straightforward and less adversarial than fault-based divorces, which can reduce costs and emotional stress. However, no-fault does not necessarily mean uncontested. Couples must still resolve issues like custody, support, and property division before a no-fault divorce can be granted.

Furthermore, fault can still play a role in how issues are resolved in a no-fault divorce. Marital misconduct may still be considered by the court when making decisions about spousal support, property distribution, or child custody and visitation. Even when fault isn’t formally raised in court, it can still influence settlement negotiations and potentially result in more favorable terms for an innocent spouse.

Fault-Based Divorce

A fault-based divorce is when one spouse alleges the other engaged in misconduct that led to the breakdown of the marriage. Grounds for a fault-based divorce in Virginia include:

• Adultery
  Adultery requires clear and convincing evidence to be used effectively for grounds for divorce. If proven, it can significantly impact the court’s decisions regarding spousal support and property division, particularly if marital funds were used to support the affair.
• Cruelty and reasonable apprehension of bodily harm
  This ground includes physical violence, emotional abuse, and threats making it unsafe to remain in the marital home. Evidence of cruelty could play a role in custody decisions if the abuse occurred in front of the children, or the court may consider this conduct when awarding exclusive use of the marital home or determining fair property distribution.
• Desertion or abandonment
  The grounds of desertion or abandonment apply when one spouse leaves the marriage without justification and no longer fulfills their marital responsibilities. Evidence of desertion or abandonment can influence the court’s decisions regarding custody, property division, and spousal support, particularly if one party was left financially disadvantaged.
• A felony conviction of a year or more
  When a spouse is convicted of a felony and sentenced to a year or more in prison, and the couple does not cohabitate after the conviction, it can potentially influence custody decisions and asset division depending on the facts of the case.

A fault-based divorce requires substantial evidence, not just allegations. Consequently, it will be critical to work with an experienced Virginia Beach divorce attorney to understand the potential risks and advantages of pursuing a fault-based divorce and what evidence the court looks for in these cases. At Melone Hatley, P.C., our highly skilled Virginia Beach divorce attorneys are dedicated to helping our clients understand the process, weigh their options, and build strong cases to protect their interests and future.

In Virginia, marital property is divided according to the principle of equitable distribution. This ensures that property is divided fairly between spouses, though not necessarily equally.

Marital vs. Separate Property

Before property division can occur, the court must first establish what belongs to the marital estate.

• Marital property is any assets and debts acquired by either spouse during the marriage, regardless of who acquired it or appears on a title.
• Separate property is any assets or debts owned by one spouse before the marriage or assets acquired by either spouse during the marriage through a gift or inheritance.
• Hybrid property is property that includes both marital and separate components. For example, a home owned by one spouse before the marriage is typically separate property, but when both spouses contribute to mortgage payments and upkeep during the marriage, the property may be considered part marital and part separate.

Before equitable distribution can take place, all assets and debts must be identified, classified, and valued to ensure a clear and accurate picture of the marital estate.

Equitable Distribution Factors Virginia Courts Consider

When the court makes property division decisions, it will consider a number of factors:

• The length of the marriage
• Each spouse’s monetary and non-monetary contributions to the marriage
• Each party’s income and earning capacity
• How and when the property was acquired
• The tax consequences of any proposed distribution
• Any use or dissipation of marital assets in anticipation of divorce
• The circumstances that led to the breakdown of the marriage, including evidence of fault

The goal of equitable distribution is to reach a fair division, given the full scope of the marriage and each spouse’s future financial needs.

Can Spouses Come to Their Own Property Division (and Other Agreements) Without Intervention by the Court?

While the court will decide property division when spouses cannot agree, couples have the option to resolve these matters privately through a negotiated agreement. This can be accomplished through a separation agreement or property settlement agreement which are legally binding contracts that outline how marital property will be divided, as well as agreed-upon child support arrangements, spousal support, and other issues.

The benefits of coming to agreements outside the courtroom include:

• Greater control over the outcome
• Quicker resolution
• A less adversarial process
• Increased privacy

Once signed and submitted to the court, a property settlement agreement becomes part of the final divorce decree and is enforceable by law. Our attorneys are skilled negotiators who work to protect our clients’ rights while helping them avoid the uncertainty and expense of litigation when practical and possible. By understanding your circumstances and identifying your goals, we can draft or review separation or settlement agreements to ensure your long-term interests are preserved.

For divorcing spouses with children, child custody is often the most emotionally charged aspect of a divorce. We understand that nothing is more important than your relationship with your children. At Melone Hatley, P.C., we are committed to protecting your parental rights while working toward solutions that promote your children’s stability and well-being.

Types of Child Custody

Virginia law recognizes two primary forms of child custody: legal custody and physical custody.

Legal Custody

Legal custody refers to a parent’s authority to make major decisions for their child, including their education, healthcare, religious upbringing, and general welfare. Legal custody can be further broken down into joint and sole legal custody.

• Joint legal custody
  Joint legal custody is when parents can communicate and make decisions together based on their child’s needs and well-being. Virginia courts favor joint legal custody.
• Sole legal custody
  Sole legal custody may be awarded when one parent is unable or unwilling to participate in making these decisions or when co-parenting would be harmful to the child.

Physical Custody

Physical custody refers to where the child lives, and which parent provides their day-to-day care.

• Joint physical custody is when the child spends significant time with both parents, although it might not be an even split. Joint physical custody best supports ongoing parental involvement and consistency for the child when possible.
• Primary physical custody places the child primarily with one parent, while the other is awarded parenting time or visitation.
• Sole physical custody is rare and typically awarded in situations involving abuse, neglect, or substance abuse. The other parent’s access also may be limited or supervised to protect the child.

The court has broad discretion in determining the custody arrangement that best serves the child, but there is a strong preference for joint custody when it is practical and in the child’s best interest.

Factors the Court Will Consider When Making Custody Decisions

Virginia courts make custody decisions based on what is known as the “best interests of the child” standard. According to Virginia Code § 20-124.3, the court considers multiple factors when making these decisions:

• The age and physical and mental condition of the child
• The age and physical and mental condition of each parent
• The existing relationship between each parent and the child
• Each parent’s ability to meet the child’s emotional and financial needs
• The role each parent has played and will continue to play in the child’s life
• The willingness and ability of each parent to support the child’s relationship with the other parent
• Any history of family abuse or violence
• The reasonable preference of the child, if the child is of sufficient age and maturity
• Other factors the court may consider necessary and proper to make a decision

Virginia courts make custody decisions with the goal of prioritizing the child’s health, stability, and ongoing development. Courts generally recognize that children thrive when both parents are actively involved in their lives. However, in some cases, limiting one parent’s involvement may be necessary to protect the child’s well-being.

Parenting Plans and Visitation

In Virginia, parents are encouraged to create a parenting plan that outlines how they will raid their children after divorce. While the court may step in and impose a parenting arrangement, parents who can collaborate are best suited to create a plan that truly meets their needs and the needs of their children. Even when parents come to a plan, however, the court must review and approve it to ensure it serves the best interests of the children,

A comprehensive parenting plan should address

• A physical custody schedule that outlines where the child will reside on weekdays, weekends, holidays, school breaks, and vacations
• How decision-making authority will be shared or divided
• How and where exchanges will be handled between parents
• How and when the child will communicate with the other parent during visits or extended time apart
• Methods for resolving future disagreements
• Rules regarding relocations that could impact the custody arrangement

Parenting plans should be tailored to fit the unique needs of each child and family, considering factors like the child’s age, temperament, school schedule, and emotional and physical needs.

Spousal support, also known as alimony, is one of the more commonly disputed aspects of a divorce proceeding.

Spousal support is the court-ordered payment from one spouse to another to help the lower-earning spouse to maintain financial stability. The types of spousal support recognized by Virginia law include:

• Temporary support to meet immediate needs pending divorce proceedings
• Rehabilitative support designed to help a spouse gain education or skills to become self-supporting
• Permanent or indefinite support awarded in some long-term marriages where one spouse is unlikely to become self-sufficient due to age, health, or long-term caregiving responsibilities
• Lump-sum support in lieu of ongoing monthly payments, also often used to offset property division imbalances

Because Virginia courts do not automatically award spousal support, it must be agreed upon by both parties or ordered by the court.

When making spousal support determinations, the court will consider a number of factors, including the length of the marriage, the earning capacity and age of both spouses, the age, health, and financial resources of each spouse, and other factors.  In marriages lasting fewer than 20 years, the court may award one spouse support for a defined duration, whereas spouses in marriages lasting 20 years of longer are more likely to be awarded indefinite support depending on the recipient spouse’s ability to become self-sufficient.