Introduction to Divorce in Virginia
Divorce can be a complex and emotionally challenging process. Understanding the laws and procedures specific to Virginia can help ease the stress and ensure you are well-prepared. This guide provides a comprehensive overview of the key aspects of divorce in Virginia.
Understanding Divorce in Virginia
Divorce, legally known as the dissolution of marriage, terminates a marital union and resolves issues such as property division, child custody, and support. Virginia law outlines specific requirements and procedures for obtaining a divorce.
Grounds for Divorce
Virginia recognizes both no-fault and fault-based grounds for divorce.
No-Fault Grounds
Irreconcilable Differences: The most common no-fault ground where both parties agree that their differences are so significant that they cannot be resolved.
Living Separate and Apart: Couples who have lived separate and apart without cohabitation for at least one year can file for divorce on these grounds.
Fault-Based Grounds
Adultery
Cruel or Inhuman Treatment
Abandonment
Habitual Drunkenness or Drug Addiction
Conviction of a Felony
When one party wishes to file for divorce, and the other does not agree that irreconcilable differences are present, the party must either establish "fault-based" grounds with evidence or must be able to prove that the parties have lived separately for more than one year.
Separation Requirements
In Virginia, the time required for separation before filing for a no-fault divorce depends on whether the couple has minor children and whether the separation is contested or uncontested.
Uncontested Divorce with No Minor Children: If the couple has no minor children and both parties agree to the divorce (uncontested), they must be separated for at least six months before filing for divorce. During this period, they must live separately without cohabitation and have a written separation agreement.
Uncontested Divorce with Minor Children: If the couple has minor children, they must be separated for at least one year before filing for a no-fault divorce. This one-year separation period applies even if both parties agree to the divorce.
Contested Divorce: In a contested divorce, where the spouses do not agree on the terms of the divorce or the grounds, the separation period is also one year, regardless of whether they have minor children.
During the separation period, the couple must live apart without cohabitation and interruption. This means they must live in separate residences or, if living under the same roof, must not engage in activities typical of married couples, such as sharing a bedroom, meals, or social activities.
Residency Requirements
To file for divorce in Virginia, at least one spouse must be a state resident for at least one year before filing. This ensures that Virginia courts have jurisdiction over the divorce proceedings.
Filing for Divorce
We recommend that parties work out an agreement before filing for divorce. This ensures they have the time to create an acceptable agreement in a suitable environment. Once the agreement is reached, or when an agreement can't be reached, a party may file for divorce. In Virginia, when the parties agree to the divorce and have a written agreement regarding property division and child custody, they are not required to go to court, but most file the paperwork.
Complaint for Divorce: The court process begins with one spouse filing a Complaint for Divorce in the circuit court of the county where either spouse resides.
Service of Process: The non-filing spouse must be formally notified of the divorce proceedings. They can receive notice by certified mail or service of the petition by a process server.
Answer: The non-filing spouse has a limited time to answer the complaint once it is served.
Divorce Process
Temporary Orders
When the parties are unable to reach a permanent or temporary agreement, they may ask the court to intervene. The court may issue temporary orders for spousal support, child custody, and use of marital property during the divorce process.
Discovery
Both parties exchange information and documents relevant to the case.
Mediation
Many parties voluntarily participate in mediation before or after filing for divorce. Virginia also refers parties to mediation when they disagree on custody.
Trial
When the parties cannot reach an agreement, eventually, the case will proceed to trial. Both sides offer evidence at that time, and the judge will make the final,l decision.
Division of Property
Virginia follows equitable distribution principles. Marital property is divided fairly but not necessarily equally, considering factors such as the length of the marriage, contributions of each spouse, and future financial needs. In Virginia, the court usually adopts agreements unless they are found to be induced by fraud or duress.
Child Custody and Support
Custody
The best interests of the child guide custody decisions. In Virginia, parents may share decision-making and custodial responsibility by having joint legal custody. In some circumstances, the court may order, or the parties may agree, for one parent to have sole custody.
Support
Child support is calculated based on the income shares model, considering both parents' incomes and the needs of the child. The amount paid for daycare and the amount for the child's medical insurance are included in the guidelines.
Spousal Support
Spousal support, or alimony, may be awarded based on factors such as the length of the marriage, the standard of living during the marriage, and the financial circumstances of both parties. Types of spousal support include temporary, rehabilitative, and permanent. Virginia has no formula or guideline for permanent spousal support, but a temporary guideline has been established.
Mediation and Collaborative Divorce
In addition to litigation, mediation, and collaborative divorce are effective alternatives for resolving divorce disputes.
Mediation
Mediation involves a neutral third party who helps both spouses negotiate and reach a mutually acceptable agreement. It is typically less adversarial and more cost-effective than going to trial. Mediation focuses on open communication and cooperation, which can be beneficial for maintaining a positive relationship post-divorce, especially when children are involved.
Collaborative Divorce
Collaborative divorce is a process where both spouses and their attorneys commit to resolving disputes without going to court. This approach encourages cooperation and problem-solving, allowing couples to collaborate to create a fair and customized settlement. It often involves other professionals, such as financial advisors and child specialists, to address specific issues comprehensively.
Benefits of Mediation and Collaborative Divorce
Cost-Effective: Generally, these methods are less expensive than litigation.
Time-Saving: Resolutions are typically reached faster than through court proceedings.
Privacy: These processes are private and confidential, unlike public court trials.
Control: Couples have more control over the outcome rather than leaving decisions up to a judge.
Legal Assistance
Divorce can be legally and emotionally complex. Working with a lawyer or an effective mediator can help create an agreement that will be effective for your family and will be acceptable by the court. Legal information is available on the Virginia State Bar and Legal Aid's websites. We discourage parties from using other websites since the courts have been known to reject agreements that do not conform with the requirements of Virginia Law.
Frequently Asked Questions
How long does it take to get a divorce in Virginia?
The time frame varies depending on the complexity of the case and whether it is contested or uncontested. An uncontested divorce may take a few months, while a contested divorce can take years. When an agreement is filed with the petition, most clients report that their final hearing takes about two months.
Can we use the same attorney?
No, it is unethical for one attorney to represent both parties in a divorce due to potential conflicts of interest. You may use a mediator who is an attorney. The mediator will be able to assist you in reaching an agreement and drafting a property settlement agreement, separation agreement, and parenting plan. The mediator can give you legal information. However, a mediator cannot provide you with legal advice.
What if my spouse doesn't respond to the divorce papers?
If you do not have an agreement and you file for divorce, if the spouse does not respond within the specified time frame, the court may grant a default judgment and proceed with the divorce.