Divorce Proceedings in the State of Virginia

by Bernadette A. Safrath
Virginia's divorce procedures are in place to streamline the process.

Virginia's divorce procedures are in place to streamline the process.

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Choosing to get a divorce is never any easy decision. Thankfully, Virginia's family law has a procedure in place to make an already emotional time as simple as possible. During the divorce, spouses divide their property and determine custody of their children, and a court may award spousal support and child support.

Eligibility

To file for divorce in Virginia, at least one spouse must have resided in the state for the prior six months. There also must be legal grounds for the divorce. Virginia still recognizes fault for divorce, meaning one spouse is blamed for the marriage falling apart. These grounds include adultery, abuse, abandonment and one spouse's imprisonment after being convicted of a felony. However, it is far more common for a spouse to file for a no-fault divorce. If the spouses have no children, have been living apart for six continuous months and have signed a Separation Agreement, they can file for divorce. If they have children or have not signed a Separation Agreement, the required separation period prior to filing is one year.

Filing

The divorce proceeding begins when one spouse files a Bill of Complaint in the state court of one spouse's county of residence. That complaint must then be served on the non-filing spouse. Service can be completed by the sheriff's department or a private service, though in less contentious situations where the spouses are in agreement on the divorce, the non-filing spouse may waive the service requirement.

Dividing Property

There has been a growing trend in Virginia for spouses to use alternative dispute resolution, or ADR, negotiations to reach a property settlement during the divorce. The spouses and their attorneys meet and discuss who will receive which marital assets and who will be responsible for any marital debts. If they can reach an agreement, they sign and submit a Property Settlement Agreement to the court. If the spouses wish, that agreement can cover all aspects of the divorce, including spousal support, custody and child support. The court reviews it to ensure it is fair to both parties and in the best interests of the children, and if so, it can then finalize the divorce fairly quickly. When spouses cannot agree or if the court feels ADR will not be successful, the court divides the marital property between the spouses. Each spouse is entitled to retain his separate property, meaning anything owned prior to marriage, inherited during the marriage or acquired after the separation. Virginia law requires that property be divided "equitably," which means the division is fair but not necessarily equal. Courts consider several statutory factors in this determination, including the length of the marriage, each spouse's income, the value of any separate property and each spouse's role in acquiring and maintaining the various assets.

Spousal Support

Spousal support is designed to provide financial assistance to the monetarily weaker spouse following a divorce. Virginia law used to bar a spouse from seeking support if she committed some misconduct, such as adultery, which led to the divorce. However, while the spouses' actions are considered in determining the amount and duration of support, there is now at least a chance for financial support for her in such a situation. The court also considers the spouses' ages, the value of each spouse's assets, each spouse's income, the length of the marriage and the owing spouse's ability to meet the support obligation while still providing for his own needs. Support may be paid in installments or as a lump sum, and the court can modify the support order if either spouse experiences a change in circumstances. Such changes include the owing spouse losing his job, the receiving spouse getting remarried or either spouse's death.

Children

The remaining issue in divorces involving children is child custody and support. Virginia courts award custody in the "best interests of the child" and prefer an arrangement in which both parents maintain a meaningful and continuous relationship with the child. The parent with primary custody normally receives child support from the other parent. Child support is set using a formula involving the income of both parents, the number of children in need of support and the amount of time the child spends with each parent. If the parent without primary custody has possession of the child for at least 90 days of the year, the support amount is decreased. This is because a non-custodial parent, who still spends a significant amount of the year with the child, is responsible for the child's expenses while in his care and should not be required to provide excessive child support, while also paying for the child himself.