Virginia Divorce Law

Divorce – State Law Summary – Virginia

Notes: This summary is not intended to be an all inclusive summary of the law of divorce in Virginia, but does contain basic and other provisions.

 

Grounds
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.  20-91.

Residency Requirements
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.  20-97.

Venue
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.  8.01-261

Name of court and title of action/parties
The Circuit Court has jurisdiction to hear actions for divorce. The name of the action which initiates the divorce is called a Complaint, while the action which grants the divorce is referred to as the Decree of Divorce.  The party filing the action is the Plaintiff, while the other party to the divorce is referred to as the Defendant. 20-96.

Waiting Period
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. See 20-91.

Financial Statement
Although Virginia law does not specifically require that a financial statement be filled out by the parties, it is highly advisable that both parties do so to insure and equitable division of the parties marital property.

Property Division
Virginia is an equitable distribution state in which the court, if the parties have not entered into a settlement agreement, will divide the marital property equitably between the parties, taking into consideration many factors such as; the contribution of each spouse to the acquisition, care, and maintenance of the marital property, the length of the marriage, etc. See 20-107.3

Mediation
In any appropriate case the court shall refer the parents or persons with a legitimate interest to a dispute resolution evaluation session to be conducted by a certified mediator.  20-124.4

Alimony
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 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 division of 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. 20-107.1

Child support
In any proceeding on the issue of determining child support, the court shall consider all evidence presented relevant to any issues joined in that proceeding. The court’s decision in any such proceeding shall be rendered upon the evidence relevant to each individual case. However, 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 guidelines is the correct amount of child support to be awarded.  In order to rebut the presumption, the court shall make written findings in the order, which findings may be incorporated by reference, that the application of such guidelines would be unjust or inappropriate in a particular case. 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, including the cost of visitation travel;
  3. Imputed income to a party who is voluntarily unemployed or voluntarily under-employed; provided that income may not be imputed to a 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 and provided further, that any consideration of imputed income based on a change in a party’s employment shall be evaluated with consideration of the good faith and reasonableness of employment decisions made by the party, including to attend and complete an educational or vocational program likely to maintain or increase the party’s earning potential;
  4. Any child care costs incurred on behalf of the child or children due to the attendance of a custodial parent in an educational or vocational program likely to maintain or increase the party’s earning potential;
  5. Debts of either party arising during the marriage for the benefit of the child;
  6. Direct payments ordered by the court for maintaining life insurance coverage pursuant to subsection D, education expenses, or other court-ordered direct payments for the benefit of the child;
  7. Extraordinary capital gains such as capital gains resulting from the sale of the marital abode;
  8. Any special needs of a child resulting from any physical, emotional, or medical condition;
  9. Independent financial resources of the child or children;
  10. Standard of living for the child or children established during the marriage;
  11. Earning capacity, obligations, financial resources, and special needs of each parent;
  12. Provisions made with regard to the marital property under § 20-107.3, where said property earns income or has an income-earning potential;
  13. Tax consequences to the parties including claims for exemptions, child tax credit, and child care credit for dependent children;
  14. A written agreement, stipulation, consent order, or decree between the parties which includes the amount of child support; and
  15. Such other factors as are necessary to consider the equities for the parents and children.

The court shall have the authority to order a party to provide health care coverage for dependent children if reasonable under all the circumstances and health care coverage for a spouse or former spouse. 20-108.1

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. The court shall give due regard to the primacy of the parent-child relationship but may upon a showing by clear and convincing evidence that the best interest of the child would be served thereby award custody or visitation to any other person with a legitimate interest. The court may award joint custody or sole custody.  In determining best interests of a child for purposes of determining custody or visitation, the court shall consider the following:

1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
2. The age and physical and mental condition of each parent;
3. 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;
4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
5. The role which each parent has played and will play in the future, in the upbringing and care of the child;
6. 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;
7. The relative 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;
8. 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;
9. Any history of family abuse as that term is defined in § 16.1-228; and
10. Such other factors as the court deems necessary and proper to the determination.

The judge shall communicate to the parties the basis of the decision either orally or in writing.  20-124.2., 20-124.3.

Name change
Upon request and for a just and reasonable cause, the court may restore a wife to her former name.  20-121.4


Inside Virginia Divorce Law