Getting a Divorce in Virginia? Divorce Law Cheat Sheet for the State of Virginia
1. What are the residency requirements for filing for divorce in Virginia?
To file for divorce in Virginia, one of you must be a resident and domicile of Virginia for six months before you file for divorce. A domicile is someone who lives in Virginia. A resident is someone who lives in Virginia and intends to remain in Virginia.
2. Does Virginia have a waiting period?
Yes. If you have children younger than 18, you must live separately for one year to get a no-fault divorce. If you’ve signed a property settlement agreement and do not have children younger than 18 together, the separation period is six months.
3. Does the state have grounds for divorce?
Yes. Grounds for divorce in Virginia include:
- Your spouse has committed adultery (had an affair).
- Your spouse was jailed for a felony for at least a year and, after release, you have not lived together.
- Your spouse has been cruel, physically harmed you or abandoned you (the divorce can be finalized one year after the act was committed).
4. How does Virginia determine the division of property?
You and your spouse are encouraged to come up with a settlement on your own and present it to the court. If you can’t agree, the court will divide your property for you. Virginia is an equitable distribution state, meaning the court considers certain factors to determine a fair (though not necessarily equal) division of the marital property. It’s not necessarily a 50/50 split. Factors include:
- The monetary and non-monetary contributions each of you made toward the well-being of your family and the acquisition of the property.
- The ages and health conditions of you and your spouse.
- You and your spouse’s economic circumstances what caused your marriage to end.
- How long you were married.
- You and your spouse’s ages and physical and mental conditions.
- Any tax consequences that would result from your division of property.
- Alimony or other circumstances that have a financial impact.
- Any other factors the court considers necessary for a fair and equitable division.
The state excludes separate property from consideration. Virginia considers separate property to be:
- All property you acquired before you were married.
- All property you acquired during your marriage by gift or inheritance, unless it was from your spouse.
- All property you acquired during your marriage in exchange for or from the proceeds of sale of your separate property, as long as you kept that property separate while you were married.
Virginia counts as marital property:
- All property titled in both your names all other property acquired during your marriage that isn’t separate property as defined above the portion of pensions.
- Profit-sharing or retirement plans either of you acquired during the marriage is presumed to be marital property unless you can prove otherwise.
- The portion of personal injury or workers’ compensation awards either of you received during your marriage is martial property.
- The increase in value of your separate property when the personal efforts of each of you during your marriage or your marital money caused the increase.
This generally applies to family businesses and professional practices. The court does take a just and reasonable approach to this division. It might divide the property between the two of you, depending on what it is. Or it might give the property to one of you and require you to give the other spouse some money for his or her part of the property — a house may be divided this way, for example.
5. Does Virginia require mediation before a divorce is granted?
Virginia does not require mediation before it will grant your divorce. The court may order mediation in specific situations, such as when custody is in dispute.
6. How does the state determine child custody?
Legal custody and physical custody are two different things. Legal custody means decision-making authority in the major matters — where a child goes to school, what faith he or she is raised in and other biggies. Physical custody addresses where a child will live and with whom. Visitation is then negotiated based your physical custody arrangement.
What is best for the child is the top concern the judges are required to keep in mind. To find what is best in terms of custody and visitation, a judge must consider these specific factors:
- The age and physical and mental condition of both of you and your child.
- Your child’s relationship with each of you,
- Your child’s needs.
- What role each of you has played and will play in your child’s upbringing.
- The ability of each parent to foster the child’s relationship with the other parent and other family members.
- Whether each of you is willing and able to encourage a close relationship between the other parent and your child,
- You and your spouse’s ability to resolve conflicts regarding issues with the child.
- Your child’s wishes any history of family abuse.
The court can hear from your child, too, as well as medical or mental health professionals.
7. How does the state calculate child support?
Virginia uses a formula in the majority of cases. It takes into account each parent’s gross income, work-related child-care costs and how much it costs to cover the child with health insurance. If the non-custodial parent has visitation for more than 90 days each year, that parent’s support may be calculated with a reduced or shared custody formula. A basic calculator can be found on the state’s Division of Support enforcement Web site at www.dss.state.va.us/family/dcse_calc.cgi
8. How does the state determine and calculate alimony?
Alimony, also known as spousal support, is not a standard part of divorce proceedings. Rather, it is awarded on a case-by-case basis. The court will look at the events that led to the end of your marriage, as well as 13 other factors:
- You and your spouse’s financial resources and obligations.
- Your standard of living while you were married.
- How long you were married your ages and physical and mental conditions,
- Whether the age or physical or mental condition of your child would prevent either of you from holding a job,
- You and your spouse’s monetary and non-monetary contributions to the well-being of your family during your marriage,
- You and your spouse’s property.
- What marital property each of you received in the divorce.
- Your education and job skills and the market for your job skills,
- How long it would take you or your spouse to get an education to further your earning potential and what that education would cost.
- Your decisions regarding employment, education and parenting arrangements during your marriage and their effect on your present and future earning potential.
- What either of you might have contributed to the other’s education or career.
- What tax consequences each of you might face after your divorce.
Spousal support is generally not used to punish a party, but if the potential recipient has committed adultery, he or she may lose the right to receive support as a result.
9. Is there a waiting period before remarriage in Virginia?
There is no waiting period; you are free to remarry after the court delivers the final judgment ending your marriage.
FOR MORE INFORMATION
The Virginia State Bar has information on family law and other issues available: www.vsb.org/site/publications/public-information-pamphlets/
Fairfax County has posted some divorce forms online at http://www.fairfaxcounty.gov/COURTS/CIRCUIT/divorce_info.htm
Information in this article verified by:
Name: Mary Beth Long
Years in Practice: 9
Law School: University of Richmond, TC Williams School of Law
Firm: VA Family Law, PLC
Concentration: Family law.
Web site: www.divorcerichmond.com
Telephone Number: 866-381-3779
