Virginia Divorce Information and
FAQ
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, on the Chancery side, has jurisdiction
to hear actions for divorce. The name of the action which initiates the
divorce is called a Complaint for Divorce, 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 children, 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;
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, 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 extraordinary 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. Disposition of any 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.
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 » Return to top 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
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