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Henry Dahut, J.D.
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Henry Dahut is a licensed California trial attorney. Over the course of his 25-plus years practicing law, Henry has represented and counseled countless clients in legal trouble.
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Whether you’re considering ending your marriage or are currently in divorce proceedings, this article will help you understand the legal framework surrounding Virginia’s divorce laws and their process.
Going through a divorce is a complex and challenging process, especially when you consider that each state has its own specific laws and local rules that govern the divorce process.
The goal of this article is to provide a summary overview of Virginia’s divorce laws, giving special attention to the following divorce topics:
- Virginia Residency Requirements
- Virginia Grounds For Divorce
- Legal Separation in Virginia
- Dividing Marital Property in Virginia
- Virginia Maintenance and Spousal Support
- Virginia Child Custody Laws
- Virginia Child Support Laws
- Legal Name Change in Virginia
Divorce Law Summary
Residency Requirements
Duration of Residency
At least one of the spouses must have been a bona fide resident and domiciliary of Virginia for a minimum of six months immediately preceding the filing of the divorce petition.
Grounds For Divorce
No-Fault
No-fault divorces are permitted and encouraged in Virginia, which means either partner can file for divorce without blaming the other for the demise of the marriage.
Virginia’s no-fault divorce requirements are different from those in most states. In Virginia, if a couple does not have any children under the age of 18, has been living in separate residences for at least six months, and both spouses have executed a separation agreement, they can lawfully apply for divorce after six months. If the couple has children of minor age, they must wait at least one year before filing for divorce.
Fault-Based Divorce
Even though Virginia is considered a no-fault state, a divorce can be granted on no-fault or fault-based grounds.
When it comes to fault-based divorces, Virginia’s statutory grounds include:
Adultery: Engaging in a sexual relationship outside of the marriage. This is a serious ground and must be proven by clear and convincing evidence.
Cruelty: This includes acts that result in bodily harm or create a reasonable fear of physical harm, making it unsafe for the spouses to continue living together.
Willful Desertion or Abandonment: One spouse has willfully deserted or abandoned the other without cause or justification for one year or more.
Conviction of a Felony: If one spouse is convicted of a felony and sentenced to confinement for more than one year, this can be grounds for divorce.
Separation
In Virginia, no legal status is known as “legal separation” in the same way other states recognize legal separation between married spouses. However, spouses can and do separate by living apart with the intent of ending their marriage.
The state does require separating spouses to:
Draft and Sign a Separation Agreement: While Virginia does not have a court process for legal separation, couples can enter into a separation agreement. The agreement is a legally binding and enforceable contract that sets out the specific terms of the separation regarding child custody, support, property division, and other legally relevant issues.
Must Live Separate Lives: To obtain a divorce, the spouses should live “separate and apart.” This can mean living in different residences or, in some cases, under the same roof but without sharing marital responsibilities or a bedroom.
True and Provable Intent to Separate: The separation must be with the intent to end the marriage, and this intent should be clear and demonstrable, often marked by physical separation and a cessation of marital relations.
Duration of Separation: As mentioned earlier, to file for a no-fault divorce, the couple must meet the requisite separation period, which is one year if there are minor children, or six months with a separation agreement and no minor children.
Dividing Marital Property
Virginia is an equitable distribution state, meaning that if the parties can’t agree, the marital property will be distributed based on equity and fairness.
Major Factors Considered
In Virginia, when dividing marital property through equitable distribution, the court considers several statutory factors, including:
- The monetary and non-monetary contributions of each party to the family’s well-being. This includes contributions as a homemaker.
- The length of the marriage can influence the division, with longer marriages sometimes resulting in different distributions compared to shorter ones.
- Each party’s age and physical and mental condition may affect their future financial needs and abilities.
- How and when specific items of marital property were acquired, including the efforts expended by each party in acquiring them.
- The court may consider the circumstances that contributed to the dissolution of the marriage, including any fault grounds such as adultery or cruelty.
- The debts and liabilities of each spouse, including those incurred during the marriage for the benefit of the family.
- The liquidity of the marital property means how easily it can be converted into cash without significant loss of value.
- The tax consequences to each party resulting from the division of property.
- How the marital property has been used or maintained by either party, including any prior agreements regarding ownership?
- Any other factors the court deems necessary or appropriate to arrive at a fair and equitable distribution.
Watch Halcomb Law Divorce Attorney Discuss How Marital Property Is Divided In Virginia:
(Above: Video On Property Division In Virginia)
Maintenance and Spousal Support
The court, in its discretion, may decree that maintenance and support of a spouse be paid in periodic payments for a defined duration, periodic payments for an undefined period, a lump sum award, or any combination thereof.
The court, in determining whether to award support and maintenance for a spouse, will consider the following factors:
- The obligations, needs, and financial resources of the parties, including but not limited to income from all pension, profit-sharing, or retirement plans of whatever nature
- The standard of living established during the marriage
- The duration of the marriage
- The age and physical and mental condition of the parties and any particular circumstances of the family;
- The extent to which the age, physical or mental condition, or particular circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home
- The contributions of each party to the well-being of the family
- The property interests of the parties, both real and personal, tangible and intangible
- The provisions made concerning the marital property division
- The earning capacity, including the skills, education, and training of the parties and the present employment opportunities for persons possessing such earning capacity
- The opportunity for, the ability of, and the time and costs involved for a party to acquire the appropriate education, training, and employment to obtain the skills needed to enhance their earning ability
- Other factors, including the tax consequences for each party, are necessary to consider the equities between the parties.
Child Custody
In determining custody, the court shall give primary consideration to the child’s best interests. The court shall assure minor children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children.
As between the parents, there shall be no presumption or inference of law in favor of either, and the court may award joint or sole custody.
In determining the best interests of a child for purposes of deciding issues such as custody or visitation arrangements, the court will consider the following factors:
- The child’s age and physical and mental condition, taking into consideration the child’s changing developmental needs.
- The age and physical and mental condition of each parent.
- The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual, and physical needs of the child
- The needs of the child, giving due consideration to other meaningful relationships of the child, including but not limited to siblings, peers, and extended family members.
- The role that each parent has played and will play in the future, the upbringing and care of the child.
- The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child.
- The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child and the power of each parent to cooperate in and resolve disputes regarding matters affecting the child.
- The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age, and experience, to express such a preference.
- Any history of family abuse
- Such other factors as the court deems necessary and proper to the determination
Child Support
Virginia uses a formula-based approach outlined in its state child support guidelines. The combined gross income of the parents and the number of children to be supported are used to calculate a basic support obligation.
Best Interests of The Child
Ultimately, in Virginia, as in all states, the court’s primary concern will be what is in the best interests of the child.
In Virginia, child support is determined using the state’s statutory child support guidelines, which include:
- Income of Both Parents: The court starts by determining the gross income of both parents. This includes all income sources such as wages, salaries, bonuses, commissions, dividends, and rental income.
- Deductions: Certain deductions are allowed from the gross income, such as pre-existing child or spousal support obligations and the cost of health insurance premiums specifically for the child.
- Additional Costs: The guidelines account for additional expenses such as work-related childcare costs and extraordinary medical expenses for the child.
- Parenting Time: The amount of time each parent spends with the child can influence the support calculation. The court may adjust the support obligation based on the number of days the child spends with each parent.
Legal Name Change
In Virginia, divorce courts allow a spouse to request a name change during the divorce proceedings.
A spouse wanting to revert to their former name can request this change be included in the final divorce decree. This request is usually made during the divorce process.
The request for a name change must be made formally and is often included in the initial divorce complaint or a separate petition to the court.
The court generally grants the request so long as there is no fraudulent intent, such as evading debt or taxes.
Sources and References
Virginia Bar Association – Divorce Laws
Cornell Law – Information Institute
