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Virginia Divorce Laws
Residency and Filing Requirements:In order to file for a divorce in Virginia, residency requirements must be met for the court to accept the case. If the court discovers it does not have jurisdictional rights to hear the case it will not be accepted or it will eventually be dismissed. The requirements are as follows:
In suits for annulment, affirmance, or divorce, the county or city in which the parties last cohabited, or at the option of the plaintiff, in the county or city in which the defendant resides, if a resident of this Commonwealth, and in cases in which an order of publication may be issued against the defendant under § 8.01-316, venue may also be in the county or city in which the plaintiff resides. (Virginia Code - Title 8 - Sections: 8.01-261)
Grounds for Filing:The Complaint for Divorce must declare the appropriate Virginia grounds upon which the divorce is being sought. The appropriate lawful ground will be that which the parties agree upon and can substantiate, or that which the filing spouse desires to prove to the court. The divorce grounds are as follows:
Divorce from the bond of matrimony may be decreed:
(1) On the application of either party if and when the husband and wife have lived separate and apart without any cohabitation and without interruption for one year. In any case where the parties have entered into a separation agreement and there are no minor children either born of the parties, born of either party and adopted by the other or adopted by both parties, a divorce may be decreed on application if and when the husband and wife have lived separately and apart without cohabitation and without interruption for six months.
(1) For adultery; or for sodomy or buggery committed outside the marriage; (2) Where either of the parties subsequent to the marriage has been convicted of a felony, sentenced to confinement for more than one year and confined for such felony subsequent to such conviction, and cohabitation has not been resumed after knowledge of such confinement (in which case no pardon granted to the party so sentenced shall restore such party to his or her conjugal rights); (3) Where either party has been guilty of cruelty, caused reasonable apprehension of bodily hurt, or willfully deserted or abandoned the other, such divorce may be decreed to the innocent party after a period of one year from the date of such act. (Virginia Code - Title 20 - Sections: 20-91)
Filing Spouse Title:Plaintiff. The Plaintiff is the spouse who initiates the filing procedure with the family law or domestic relations court.
Non-Filing Spouse Title:Defendant. The Defendant is the spouse who does not file the initial divorce papers, but rather receives them by service.
Court Name:Circuit Court, Juvenile and Domestic Relations Court, or Family Court. This is the Virginia court where the divorce will be filed. The court will assign a case number and have jurisdictional rights to facilitate and grant the orders concerning, but not limited to: property and debt division, support, custody, and visitation. The name of the court is clearly represented at the top of all documents that are filed.
Primary Documents:Complaint for Divorce and Decree of Divorce. These are the essential documents needed to start and finalize a divorce according to Virginia law. There are anywhere from ten to twenty other documents that may be required throughout the filing process. A few other documents that are typically filed during the process are: Verification, Acceptance/Waiver of Service of Process, Marital Settlement Agreement, Answer to Bill of Complaint for Divorce, Affidavit of Corroborating Witness, and Request for Ore Tenus Hearing.
Court Clerk's Title:County Clerk's Office of the Family Court. The clerk or the clerk's assistants will be the people managing your paperwork with the court. The clerk's office will keep the parties and the lawyers informed throughout the process in regards to additional paperwork that is needed, further requirements, and hearing dates and times.
Property Distribution:Since Virginia is an "equitable distribution" state, the marital property shall be divided in an equitable fashion. Equitable does not mean equal, but rather what is fair. The court will encourage the parties to reach a settlement on property and debt issues otherwise the court will declare the property award.
Separate property is (i) All property, real and personal, acquired by either party before the marriage; (ii) All property acquired during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party; (iii) All property acquired during the marriage in exchange for or from the proceeds of sale of separate property, provided that such property acquired during the marriage is maintained as separate property; and (iv) That part of any property classified as separate. Income received from separate property during the marriage is separate property if not attributable to the personal effort of either party. The increase in value of separate property during the marriage is separate property, unless marital property or the personal efforts of either party have contributed to such increases and then only to the extent of the increases in value attributable to such contributions. The personal efforts of either party must be significant and result in substantial appreciation of the separate property if any increase in value attributable thereto is to be considered marital property.
Marital property is (i) All property titled in the names of both parties, whether as joint tenants, tenants by the entirety or otherwise, except as provided by Subdivision A 3, (ii) That part of any property classified as marital, or (iii) All other property acquired by each party during the marriage which is not separate property as defined above. All property including that portion of pensions, profit-sharing or deferred compensation or retirement plans of whatever nature, acquired by either spouse during the marriage, and before the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent, is presumed to be marital property in the absence of satisfactory evidence that it is separate property. For purposes of this section marital property is presumed to be jointly owned unless there is a deed, title or other clear indiciation that it is not jointly owned.
The amount of any division or transfer of jointly owned marital property, and the amount of any monetary award, the apportionment of marital debts, and the method of payment shall be determined by the court after consideration of the following factors: 1. The contributions, monetary and nonmonetary, of each party to the well-being of the family; 2. The contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties; 3. The duration of the marriage; 4. The ages and physical and mental condition of the parties; 5. The circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce under the provisions of subdivisions (1), (3) or (6) of § 20-91 or § 20-95; 6. How and when specific items of such marital property were acquired; 7. 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; 8. The liquid or nonliquid character of all marital property; 9. The tax consequences to each party; 10. The use or expenditure of marital property by either of the parties for a nonmarital separate 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; and 11. Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award. (Virginia Code - Title 20 - Sections: 20-107.3)
Spousal Support:Not all cases involve support from one spouse to the other. The obligation of one spouse to support the other financially for a temporary or permanent basis is decided on a case-by-case basis as agreed to by the parties or at the court's discretion.
The court, in determining whether to award support and maintenance for a spouse, shall consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery and any other ground for divorce under the provisions of subdivision (3) or (6) of § 20-91 or § 20-95.
In determining the nature, amount and duration of an award pursuant to this section, the court shall consider the following: 1. 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; 2. The standard of living established during the marriage; 3. The duration of the marriage; 4. The age and physical and mental condition of the parties and any special circumstances of the family; 5. The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home; 6. The contributions, monetary and nonmonetary, of each party to the well-being of the family; 7. The property interests of the parties, both real and personal, tangible and intangible; 8. The provisions made with regard to the marital property; 9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity; 10. The opportunity for, 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 his or her earning ability; 11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market; 12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and 13. Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties. (Virginia Code - Title 20 - Sections: 20-95 and 10-107.1 and 20-108.1)
Child Custody:When minor children are involved in a divorce, the Virginia courts will do everything possible to help lessen the emotional trauma the children may be experiencing. If the parents cannot come to an agreement regarding the issues involving the children, the court will establish the custody order at its discretion.
Custody, whether joint or sole, will be awarded to the father or the mother or both based on the best interests of the children. There are no specific factors considered by the courts, but the following is a list of typical factors taken into consideration when determining a custody arrangement that is best for the children. These factors are, but are not limited to; the age of the children, the health of the children, the wishes of the child(ren), the parental roles of each parent, and the needs of the children. (Virginia Code - Title 20 - Sections: 20-107.2)
Child Support:Virginia child support guidelines are based on the Income Shares Model for calculating child support. The monthly support amount determined by applying the guidelines is divided proportionally according to each parent's income. These two support amounts are then offset to establish which parent will pay the other parent for support of the child. All income is typically verified by examining past W-2's and child support worksheets are available at the courthouse.
Upon entry of a decree providing (i) For the dissolution of a marriage, (ii) For a divorce, whether from the bond of matrimony or from bed and board, (iii) That neither party is entitled to a divorce, or (iv) For separate maintenance, the court may make such further decree as it shall deem expedient concerning the custody or visitation and support of the minor children of the parties, including an order that either party provide health care coverage.
The finding that rebuts the guidelines shall state the amount of support that would have been required under the guidelines, shall give a justification of why the order varies from the guidelines, and shall be determined by relevant evidence pertaining to the following factors affecting the obligation, the ability of each party to provide child support, and the best interests of the child: 1. Actual monetary support for other family members or former family members; 2. Arrangements regarding custody of the children; 3. Imputed income to a party who is voluntarily unemployed or voluntarily under-employed; provided that income may not be imputed to the custodial parent when a child is not in school, child care services are not available and the cost of such child care services are not included in the computation; 4. Debts of either party arising during the marriage for the benefit of the child; 5. Debts incurred for production of income; 6. Direct payments ordered by the court for health care coverage, maintaining life insurance coverage pursuant to subsection D, education expenses, or other court-ordered direct payments for the benefit of the child and costs related to the provision of health care coverage 7. Extraordinary capital gains such as capital gains resulting from the sale of the marital abode; 8. Age, physical and mental condition of the child or children, including unreimbursed medical or dental expenses, and child-care expenses; 9. Independent financial resources, if any, of the child or children; 10. Standard of living for the family established during the marriage; 11. Earning capacity, obligations and needs, and financial resources of each parent; 12. Education and training of the parties and the ability and opportunity of the parties to secure such education and training; 13. Contributions, monetary and nonmonetary, of each party to the well-being of the family; 14. Provisions made with regard to the marital property 15. Tax consequences to the parties regarding claims for dependent children and child care expenses; 16. A written agreement between the parties which includes the amount of child support; 17. A pendente lite decree, which includes the amount of child support, agreed to by both parties or by counsel for the parties; and 18. Such other factors, including tax consequences to each party, as are necessary to consider the equities for the parents and children. (Virginia Code - Title 20 - Sections: 20-107.2, 20-108.1 and 20-108.2)
Copyright Notice: The above synopsis of Virginia divorce laws is original material which is owned and copyrighted by Divorce Source, Inc. This material has been adapted from applicable state laws and unauthorized reproduction is prohibited. Violation of this notice will result in immediate legal action.
The Virginia court gives primary consideration to the best interests of the child in determining custody. The court assures minor children of frequent and continuing contact with both parents, when appropriate, and encourages parents to share in the responsibilities of rearing their children. In determining the best interests of a child, the court considers a variety of factors including the age, physical and mental condition of the child as well as each parent, the needs of the child, the role of each parent and the rapport of each parent, and the "willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child," family abuse, and "other factors as the court deems necessary and proper to the determination."
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