Divorce & Family Law Summary
U.S. Divorce Laws are enacted by each state using their respective legislative process. Once legislation is enacted into law, the divorce courts in Virginia have the authority to manage the divorce proceedings, including spousal support and child support payments, custodial rights of parents, and the division of property.
Since state laws are repealed and amended frequently, it is always advisable to consult with an experienced divorce lawyer before making important decisions about your marriage.
All states allow for “no-fault” divorce. Yet many courts still factor in the respective parties’ past behavior when determining the division of community property, debts, custody, support, and related issues.
Read our expanded article on the divorce process for a deeper and more realistic understanding of the challenges you’re likely to face.
RESIDENCY REQUIREMENTS
A divorce petition may be brought in Virginia if either party to the marriage has resided within the state for six months or more. Still, a divorce shall not be decreed for any cause unless the plaintiff or the defendant has lived in the state for one year preceding the date of the final hearing.
NO-FAULT BASED DIVORCE
In Virginia, when a married person has lived apart from their spouse for six consecutive months, and the court finds that the resumption of marital relations is not reasonably probable, a divorce decree can issue.
FAULT-BASED DIVORCE – STATUTORY
If a divorce is based on fault, a spouse may file for divorce, and upon a judicial finding of one or more of the following causes, a divorce decree will be granted:
(1) For adultery in either party;
(2) When either party is sentenced to confinement at hard labor in the state prison in this state for life, or for three years or more, and is confined at the time of the bringing of the libel.
(3) For intolerable severity in either party;
(4) For willful desertion or when either party has been absent for seven years and not heard of during that time;
(5) On the complaint of either party when one spouse has the sufficient pecuniary or physical ability to provide suitable maintenance for the other and, without cause, persistently refuses or neglects so to do;
(6) On the ground of incurable insanity of either party.
DIVIDING MARITAL PROPERTY
Virginia is an equitable distribution state, meaning that if the parties can’t agree, the marital property will be distributed in a fair manner. The amount of any division or transfer of jointly owned marital property, and the amount of any monetary award, the apportionment shall be determined by the court after consideration of factors such as:
- The contributions, monetary and non-monetary, of each party to the well-being of the family;
- The contributions, monetary and non-monetary, of each party in the acquisition and care and maintenance of such marital property of the parties;
- The duration of the marriage;
- The ages and physical and mental condition of the parties;
- How and when specific items of such marital property were acquired;
- The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property, which may serve as security for such debts and liabilities;
- The liquid or non-liquid character of all marital property;
- The tax consequences to each party; and
- The use or expenditure of marital property by either party for a separate nonmarital purpose or the dissipation of such funds when such was done in anticipation of divorce or separation or after the last separation of the parties.
MAINTENANCE AND SPOUSAL SUPPORT
The court, in its discretion, may decree that maintenance and support of a spouse be made in periodic payments for a defined duration, or periodic payments for an undefined period, or in a lump sum award, or any combination thereof.
The court, in determining whether to award support and maintenance for a spouse, shall 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;
- Such other factors, including the tax consequences to each party, are necessary to consider the equities between the parties.
LEGAL NAME CHANGE
Upon decreeing a divorce from the bond of matrimony, the court shall, on motion of a party who changed their name because of the marriage, restore such party’s former name or maiden name by a separate order of the court.
VIRGINIA CHILD CUSTODY
In determining custody, the court shall give primary consideration to the best interests of the child. 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 custody or sole custody.
In determining the best interests of a child for purposes of determining custody or visitation arrangements, the court shall consider the following:
- The age and physical and mental condition of the child, giving due consideration to 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; and
- Such other factors as the court deems necessary and proper to the determination.
CHILD SUPPORT
Virginia uses the Income Shares model as the base for determining child support. This method bases the level of support on the combined income of both parents.
In any proceeding on the issue of determining child support, the court shall have the authority to order a party to:
(1) Maintain any existing life insurance policy on the life of either party provided the party so ordered has the right to designate a beneficiary and
(2) Designate a child or children of the parties as the beneficiary of all or a portion of such life insurance for so long as the party so ordered has a statutory obligation to pay child support for the child or children.
