Divorce – State FAQ – Virginia
Residency requirements, venue and procedures
Q: How long must I have lived in Virginia prior to filing for divorce in a Virginia court?
A: In order to obtain a divorce in Virginia, at least one of the parties to the divorce action must have been (and still be) an actual and bona fide resident of the State of Virginia for at least six (6) months prior to the filing of the divorce action.
Q: What are the terms used to identify the parties in a divorce proceeding?
A: The party filing the action is called the Plaintiff, while the other party to the divorce is referred to as the Defendant.
Q: What is “venue,” and what is the proper venue for a divorce case?
A: “Venue” refers to which type of court and in what locality the case is filed. In Virginia, proper venue for the divorce action is the Circuit Court, Chancery Side. The proper venue for a suit for divorce in the State of Virginia is the county or city in which the parties to the divorce last cohabitated; or, at the option of the plaintiff, in the county or city in which the defendant resides (if a resident of Virginia). If the defendant is a non-resident of Virginia, the proper venue is the city or county where the plaintiff resides
Q: What is the title of the document initiating the action for divorce? The order granting the divorce?
A: The title of the document initiating the divorce proceeding is a Complaint for Divorce, while the title of the order granting the divorce is referred to as the Decree of Divorce.
Q: Are there any waiting periods associated with a divorce action?
A: Upon the expiration of either one (1) year or six (6) months, whichever is applicable, following the commencement of the action for divorce, a decree of divorce will be issued.
Grounds for divorce
Q: What is meant by “grounds for divorce”?
A: A “ground” for divorce is a “reason” for divorce. A set of judicially recognized reasons for divorce exist in Virginia. You must use one or more of these reasons to justify your divorce.
Q: What are the recognized grounds for divorce in Virginia?
A: Virginia law allows for no-fault divorces to granted if the parties seeking the divorce have lived separate and apart without cohabitation for an uninterrupted period of one (1) year. If the parties have entered into a separation agreement, there are no children borne of the marriage or adopted by the parties and both parties have lived separate and apart without cohabitation for an uninterrupted period of six (6) months, the court may also grant a no-fault decree of divorce. Additional grounds upon which a divorce may be granted include:
1. For adultery; or for sodomy or buggery committed outside the marriage;
2. Conviction of a felony and sentence to confinement for more than one year;
3. Where either party has been guilty of cruelty, caused reasonable apprehension of bodily hurt, or willfully deserted or abandoned the other.
Q: Does the state of Virginia offer an option to a complete divorce by way of a legal separation?
A: Yes. In granting a divorce from bed and board, or legal separation, the court may decree that the parties be perpetually separated and protected in their persons and property. Such decree shall operate upon property thereafter acquired, and upon the personal rights and legal capacities of the parties, as a decree for a divorce from the bond of matrimony, except that neither party shall marry again during the life of the other.
Q: On what basis does the court decide how marital property is divided?
A: Virginia is a so-called “equitable distribution” state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. The court has wide discretion in equitably distributing property.
Q: Is the “separate property” of one spouse subject to being divided up?
A: The question here is whether property “belonging to” one of the parties should be included in the marital estate for purposes of an equitable division. Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage.
Q: What if the parties occasionally use an item of separate property (for example, silver table utensils inherited by the wife) for the benefit of both parties?
A: The property may be subject to division. Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.
Q: What does the term “spousal support” (or, “alimony”) mean?
A: “Spousal support” (sometimes called “alimony”) is money paid by one spouse to the other due to the payee spouse’s loss of the benefit of the payor spouse’s income due to the divorce.
Q: Is spousal support available while the divorce is pending in court, or only after the divorce has become final?
A: The court may order that one spouse support the other during the pendancy of the divorce action and/or after the divorce has become final. Support awarded pending the final decree of divorce is not to extend beyond the period of time necessary for the prosecution of the divorce action.
Q: What factors will the court consider when determining how much alimony to award to a party?
A: 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. In determining the nature, amount and duration of an award of alimony, the court shall consider the factors listed on the Virginia Divorce Main Page in the information section.
Child custody and visitation
Q: What is child custody and visitation?
A: “Child custody” refers to which parent will have legal custody of the child(ren), i.e. with whom the child(ren) will live. “Visitation” is the topic of the non-custodial parent’s ability to visit/spend time with the child(ren).
Q: If the parents cannot agree on child custody and visitation issues, on what basis will the court decide?
A: 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. Factors the court will consider in determining custody are set out at length in the divorce information section of the Virginia Divorce Main Page.
Q: What is “child support”?
A: Child support is money paid by the non-custodial parent to the custodial parent in order to meet the needs of the child(ren).
Q: To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?
A: There shall be a rebuttable presumption in any judicial or administrative proceeding for child support, including cases involving split custody or shared custody, that the amount of the award which would result from the application of the Virginia Child Support Guidelines is the correct amount of child support to be awarded. In determining whether to diverge from the Guidelines, the court will consider the factors set out on the Virginia Divorce Main Page.