Divorce Laws in Virginia for People Married Over Five Years

By Bernadette A. Safrath

Whether spouses are married for five years or 30 years, Virginia's divorce laws are the same. The laws set forth who is eligible for a divorce in Virginia, the grounds for divorce, the procedure for dividing marital assets and the eligibility for spousal support. The duration of a marriage is really only considered when a court is determining the amount and duration of spousal support.

Residency Requirement

In Virginia, either spouse can file for divorce, if the state's residency requirement is met. Virginia requires that at least one spouse be a state resident for no less than six months before filing. The spouse who wishes to begin the divorce files a complaint in the state circuit court in the county where the couple resided.

Grounds for Divorce

Virginia has six grounds for divorce. The grounds of adultery and conviction of a felony with a sentence of at least one year do not have a waiting period. The ground of felony conviction is only valid if the filing spouse did not continue to live with the convicted spouse after he was released from prison. The remaining four grounds for divorce require a waiting period of one year from when the incidents occurred before filing. These grounds are desertion or abandonment, constructive abandonment, in which one spouse forces the other out of the marital residence, physical cruelty, abuse and separation. Separation is a no-fault ground in which the spouses voluntarily separate for one year and then agree to file for divorce. If the spouses do not have minor children and have already signed a separation agreement, the waiting period for the ground of separation can be reduced to six months.

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Division of Property

During the divorce proceedings, the court will classify all the property owned by one or both spouses and then divide it between them. Separate property is anything acquired by one spouse prior to the marriage, any gift or inheritance received by one spouse during the marriage, and any property purchased during the marriage with funds considered separate property. Generally, each spouse will be entitled to receive his separate property during the division of assets. Virginia is an equitable distribution state, which means that the court will divide the property fairly, but not necessarily equally between the spouses. The court considers several factors when dividing assets, including the value of each spouse's separate assets, each spouse's role in the marriage, each spouse's income, and which spouse has custody of any children of the marriage. These factors are used to determine who will maintain possession of the marital home.

Spousal Support

Spousal support is the only aspect of divorce Virginia in which the duration of the marriage is truly relevant. The support is designed to lessen the burden on a financially weaker spouse after the divorce. Virginia courts set the amount and duration of alimony on a case-by-case basis, examining several factors. These include the spouses' ages, the spouses' health conditions, each spouse's income, assets and financial needs and what each spouse contributed to the marriage, monetarily or otherwise. Lastly, one of the main factors considered when determining duration of spousal support is duration of the marriage. Generally, the longer the marriage, the longer the support will be owed. In cases of the longest marriages -- usually those marriages that lasted more than 20 years -- spousal support is permanent, often because the receiving spouse was a homemaker and caretaker of the children and likely was out of the workforce for many years.

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How Long Do You Have to Be Married to Receive Spousal Support?

Spousal support, or alimony, refers to the payments made to one spouse by the other during a separation of after a divorce. It is based either on an agreement between the couple or by a determination of the court. The purpose of spousal support is to limit any unfair economic effects of the divorce to the receiving spouse who is typically a non-wage earner or the lower-wage earner of the two. For example, a spouse who left the workforce to raise the couple's children might need money to get job training that will help her support herself after the divorce. While the length of the marriage is a factor that courts consider before awarding spousal support, it is usually not the only consideration.

Can an Ex-Wife Get Alimony After a Divorce in North Carolina?

In North Carolina, it is possible to petition for alimony after the divorce is final, provided certain procedural requirements are met prior to the judgment. In North Carolina, divorcing spouses generally pursue an "absolute divorce," which, unlike a fault-based divorce, is granted solely on the basis of the couple's one-year separation. This type of divorce is most similar to the "no-fault" divorce followed by many other jurisdictions and does not require allegations of fault or misconduct. Also, fault-based divorces generally require lengthy hearings prior to finalization to work out other matters, whereas an absolute divorce allows parties to obtain a divorce and work out other issues afterward. Alimony is one of many issues decided during the divorce, and parties to an absolute divorce are free to agree to their own alimony terms during marital settlement negotiations, which can occur either before or after finalization.

How to Determine Alimony in SC

To prepare for a divorce, it is important for both parties to have an understanding of the factors a court will consider in determining whether to award alimony and the types and amounts to request. In South Carolina, the length of the marriage, the existence of any marital misconduct, the parties' earning capacity, and the physical and mental health of both parties will be considered in determining the length, type and amount of an order for alimony.

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