Divorce in Virginia – Additional Information
From the Family Law Section of the VIRGINIA STATE BAR:
Everyone could be affected in some way by a divorce especially the increase in marital breakdown in our society today. Divorce often associated with property rights, financial matters, and complicated legal issues. This becomes more complicated when children are involved.
The Family Law Section of the Virginia State Bar provided this pamphlet to give the public the knowledge or information to answer some of the fundamental questions regarding separation and divorce under the laws of the Commonwealth of Virginia. We hope that this pamphlet will help every individual in understanding the difficulties that often occur in this area of the law so that possible risk may be minimized, solved or prevented through a lawyer’s services and counsel.
1. Grounds for Divorce in Virginia
Virginia law recognizes two types of divorce:
– Divorce from the bond of matrimony (a vincula matrimonii)
It is a complete and absolute divorce.
– Divorce from bed and board (a mensa et thoro)
It is a partial or qualified divorce under which married couple are separated legally from each
other but they are not allowed to remarry.
Any person given a divorce from bed and board may request the court to “convert” the decree into a divorce from the bond of matrimony after at least one year has passed from the day the couple originally separated.
The law requires that the reasons for divorce prescribed by law must exist and be proven to the court even if the couple agree that their marriage must end. Below briefly describes these grounds.
Divorce from Bed and Board
a. Abandonment or willful desertion
This requires both the intent to desert in the mind of the offender and the breaking off of sexual relations. Separation with mutual consent by either spouse will not be considered desertion. Further, if one spouse committed acts that legally amount to cruelty that cause the other spouse to leave, then the one who leaves is not guilty of desertion. In fact, the one who leaves may be granted a divorce based on cruelty or constructive desertion.
A suit for divorce from bed and board may be filed with the court immediately after the separation if desertion grounds exist. The desertion is sufficient to constitute a ground for divorce from the bond of matrimony if the desertion continues for more than one year from the date the parties originally separated.
b. Reasonable apprehension of bodily harm and cruelty
Divorce due to cruelty requires acts that render the spouses’ unsafe like inflicting bodily harm. Mental cruelty is not a ground for divorce in Virginia. But if the conduct affects and endangers the physical or mental health of the spouse who seek divorce, then it will be an enough grounds for divorce. However, rude words alone are not enough to become grounds for divorce.
Cruelty establishes the basis for a divorce from bed and board and can be filed soon after the parties separate. Grounds will exist for a divorce from the bond of matrimony after one year has elapsed from the time the act(s) of cruelty were committed.
Divorce from the Bond of Matrimony
a. Separation divorce – the “No Fault” divorce.
Modern divorce laws do not require “fault” grounds for a divorce to be granted while grounds for divorce traditionally implied misconduct by one or the other spouse. If for more than one year one of the parties intended to and the parties have continuously lived separate and apart without any cohabitation, then a “no fault” divorce from the bond of matrimony may be awarded.
Although separation provides a “faultless” ground for divorce, fault can be a factor in determining the division of marital property or may still be an issue when spousal support (alimony) is being sought. Further, even though “no fault” separation grounds exist, a judge is free to award a divorce on fault grounds. Conversely a judge free to award a “no fault divorce” even if fault grounds exist.
b. Adultery, sodomy, or buggery
Confirming adultery is very fact-specific. The evidence must be firm, adequate and convincing that the other spouse did engage in sexual relations with another person. The testimony of a spouse must be authentic to prove adultery; testimony from eyewitness as to the adulterous acts is not required. In fact, most cases of adultery are proven by using other evidence of the circumstances involved without the eyewitness testimony. Sodomy is not just an intercourse it is a sexual act such as oral or anal sex. It must be committed with someone outside the marriage to be qualified for divorce. Buggery is bestiality or a sexual act against nature. Adultery and buggery has the same standard proof but suspicion or speculation is not enough.
If the “guilty” spouse has a number of “defenses” to the charge of adultery, sodomy or buggery then a divorce will not be awarded if the guilty spouse can successfully establish any one of these defenses. These are very fact specific and should be reviewed with an attorney.
c. Conviction of a felony
If the spouse is guilty of felony and confined for more than a year then the other party has grounds for a divorce from the bond of matrimony as long as no sexual contact with the guilty spouse after knowledge of confinement.
It is a legal decree that a marriage is void unlike a divorce which dissolves a valid marriage. Only granted in limited circumstances such as a marriage entered into because of fraud, duress or coercion and it cannot be granted merely because the marriage is of short duration, or because of “religious” reasons.
2. Property rights created by marriage and Divorce?
Virginia statutes now provide for the “equitable” distribution of the marital property between the parties at the conclusion of the divorce. “Separate property” is property owned by one party prior to the marriage, property acquired after the parties have separated, inherited property and/or gifts to one party from a third person. “Marital property” consists of all jointly-titled property as well as all other property, other than separate property, acquired by either or both of the parties from the date of the marriage through the time of the final separation. Where “separate property” and “marital property” are mixed together or where the value of “separate property” is increased through the active efforts of either party during the marriage, then such property may be classified as “marital property” or as “part marital and part separate” property.
In order to divide the marital estate reasonably, the courts may order monetary awards to one of the parties, order the property sold, divide the property or transfer jointly-titled marital property to one of the parties. Under the system of “equitable distribution” of Virginia, the court will not divide the marital property on an equal basis. But instead, it will consider numerous factors listed in Virginia equitable distribution statute, it include the non-monetary and relative monetary contributions of each of the parties to the acquisition and care of the marital property and to the well-being of the family, when determining how to divide the marital assets. As part of its equitable distribution award, pensions and retirement plans that were accumulated during the course of the marriage are also subject to division by the Court. However, by statute, neither party can receive more than one-half of the amounts of the other party’s pension or retirement plan that accumulated during the marriage.
3. When is Spousal Support Awarded?
Spousal support does not have to be awarded when the divorce is granted. Instead, the parties may seek a “reservation” of the right to seek spousal support in the future. This reservation will generally last for one half of the length of the marriage.
Spousal support is not awarded to punish a guilty spouse. Rather, it is provided to lessen the financial impact of divorce on the party who is less financially independent. The amount awarded for support depends upon such factors as assets and earning potential of the parties, the duration and history of the marriage and the respective ages of the parties. The court may award spousal support in periodic payments and/or in a lump. Spousal support set by the court is subject to modification in the future upon a change in the circumstances of either party. Periodic payments could be awarded for either a set number of years or an indefinite period of time.
This area of divorce law is in the process of great change given the increasing changes to both the law and society. The fault of a spouse in causing a divorce may no longer be a complete bar to obtaining spousal support, under recent changes in Virginia law.
4. Who receives custody of the children?
In most divorces, this issue is the most crucial. The court only has one standard in determining the custody of minor children (under eighteen), that is the best interest of the child. The court may award “joint legal custody” or “sole legal custody”. “Joint legal custody” is where both parents have a role in making decisions for the child but “sole legal custody” is where one parent is ultimately responsible for making decisions in the child’s best interests. Custody will not be given to a parent as a reward or deprived from a parent as a punishment. Rather it will be awarded to the parent who is most adaptable to the task of caring for the child, and who is able to control and direct the child. Custody may be changed if there is a marital change in circumstances after the date of the divorce.
Factors considered when awarding custody by the court may include the home where the child will live, if the child is of sufficient age, intelligence, and maturity to make such a decision, the role played by each parent in the upbringing and caring for the child, the needs of the child, the relationship existing between each parent and each child, the physical and mental condition of each parent and child, and the age of the parent and child.
Another important factor in establishing most custody arrangements is which parent will be the most likely to see to it that the non-custodial parent remains a strong part of the child or children’s lives. Often the court will settle arrangements that the child, at least during the school year, will reside with one parent and the other parent will receive visitation with the child. The court will set the visitation rights if the parents cannot voluntarily agree upon satisfactory arrangements or if there is a dispute.
5. What are the Child Support Obligations?
The party receiving visitation will be called to contribute to the support of the child. This could be the mother, father or both, if a third person has custody of the child. The court is guided by the need of the child and the ability of the parent to pay or to give support. The use of the child support guidelines provides an amount of child support that is to be correct, but the court may differ from these guidelines in appropriate events. The award is subject to change so long as the obligation to support remains. If a material change occurs in the circumstances of either or both of the parents or of the child then the child support amount may be increased or decreased. Non-custodial parents who have their children for more than 90 days per year for visitation have their child support calculated using a different formula that is likely to make the support lower. Life insurance policy may require by the court to provide financial security for a child in the event that the parent obligated to pay child support dies.
The court can also apportion tax exemptions for the children between the parties.
6. What is a Property Settlement Agreement?
This is a written contract between the parties that sets forth their rights, duties and obligations that arise out of their separation and divorce and may include such things as the division of their property, spousal support, attorney’s fees, custody of their children, and child support. An attorney’s skill and experience can be especially helpful in negotiating and drafting a fair, just, and reasonable Property Settlement Agreement for the parties and their children. Such agreements are encouraged since they may amicably settle the rights of the husband and wife in the estate and property of the other.
Parties have the option of reaching a voluntary agreement resolving their concerns in the divorce rather than having the court rule upon the issues in the case. Once it is in writing, signed, sworn to by both parties, and properly notarized then that’s when the court will enforce the agreement. Oral agreements dividing the marital property may also be enforceable, but only if they meet certain strict requirements.
7. What are the Court Procedures?
Argument over child support, spousal support and custody are usually heard before a judge of a Circuit Court. Some cases, where no grounds for divorce yet exist, these matters may be heard in a Juvenile and Domestic Relations District Court, independent of the suit for divorce. Evidence in a divorce case may be taken in the office of an attorney representing one of the parties, in the office of a commissioner appointed by the court to take the evidence, or in a courtroom before a judge depending upon the practices in a given locality.
8. Are Attorneys Necessary? Who pays the fees?
Each spouse should obtain separate legal counsel if there are issues in the divorce that may be contested; the custody of the children is in dispute or property rights need to be determined but same attorney cannot represent both sides because there will be a conflict of interest. An attorney is technically not required in a divorce proceeding.
A lawyer will require an initial payment made prior to the attorney starting work. A husband or wife who employs an attorney should discuss with the attorney his or her fees and makes satisfactory arrangements to pay them.
One spouse may be called upon to pay or contribute to the attorney fees and court costs incurred by the other. Depending on the circumstances, whether either party has to pay all or a portion of the other party’s attorneys fees are matters left to the discretion of the court.
For an unhappy marriage, emotional tensions can be difficult specially if there is no possible way for an average couple to deal with it coolly or objectively. An attorney can help a client be fully aware of his or her own rights and obligations in this complex field of law especially if the attorney is equipped with a specialized knowledge of the law in divorce, custody, and related issues.
At Aloupas Law, I have the specialized knowledge and most importantly, the desire to help you through the process of divorce with the results your family deserves.