Information About Divorce in Virginia

Which Court Will I Need to Go To?

In Virginia, a number of family law issues can be heard by either the Juvenile and Domestic Relations District Court or the Circuit Court.

Juvenile and Domestic Relations District Court

If you and your spouse are living separately, and neither has already filed for divorce, or if you are not married but have children, you can go to the Juvenile and Domestic Relations District Court to obtain temporary orders regarding visitation, custody, child support and spousal support. You can also go to the Juvenile Court to enforce or modify existing Juvenile Court orders concerning custody, visitation, child support or spousal support.

Circuit Court

The Circuit Court handles appeals from the Juvenile Court. The Circuit Court is also where divorce cases are handled and where existing divorce orders are typically enforced and modified.

What are the Grounds of Divorce?

Before a divorce action can be filed in the Circuit Court, there must be a legitimate legal basis, what we call a "ground" – for the divorce. There are no-fault grounds and fault grounds.

No-Fault Grounds

A common misperception is that "no-fault" means "uncontested". No-fault simply means that in Virginia a couple can get a divorce even if neither of them is at fault. After one year of separation (or 6 months in some circumstances) a divorce action can go forward even if neither spouse has been guilty of adultery, cruelty, or another fault ground. Sometimes all that is necessary to be "legally" separated, is for the spouses to stop living together. Other times, additional factors may come into play. Some judges will allow the separation period to begin even if two spouses are still living under the same roof, but many judges are hesitant to find such a separation. There are many complicated rules regarding when a divorce action may proceed on no-fault grounds. If you would like a consultation, please contact us.

Fault Grounds

Fault grounds include adultery, cruelty, desertion, or a felony conviction with a sentence of at least one year of imprisonment. If the ground for divorce is cruelty or desertion, but the fault occurred less than one year ago, then the only type of divorce that can be filed is a limited divorce called a mensa et thoro. While this type of divorce can get a party into court, to be fully divorced, a separate action for a full divorce (called a vinculo matrimonii) will likely need to be filed after one year has passed from the date the cruelty or desertion occurred. A fault-based divorce often is more contentious and expensive than a no-fault divorce. In addition, if a spouse alleges fault grounds but cannot prove them, the court may award the other spouse attorney's fees. If you would like a consultation to learn more about the pros and cons of using fault as a ground for divorce, please contact us.

What is the Difference between an Uncontested and a Contested Divorce?

A divorce is contested whenever there are any unresolved controversies over visitation, custody, child support, spousal support, the division of property, or the division of debt. Just because the grounds for a divorce are no-fault, the divorce itself can still be contested.

A divorce is uncontested whenever the parties agree on all issues such as the divorce itself, visitation, custody, child support, spousal support, division of property and division of debt. When all of the issues have been agreed upon by the parties, that agreement is typically put into a written document called a Separation Agreement or a Property Settlement Agreement. If you would like a consultation to learn more about uncontested and contested divorces, please contact us.

Must One Spouse be a Virginia Resident?

Yes. One of the two spouses must be a bona fide resident and domiciliary of Virginia for the six months before the divorce action can be filed. However, in some circumstances, emergency custody or other matters may be filed in Virginia before six months.

Do I Have to Go to Court to Get Divorced?

Not always. If you and your spouse can reach a written agreement on all of the major issues in the divorce, there may be no need to go to court. In these cases, the divorce can be finalized simply by filing paperwork with the court.

What Are Methods to Reach a Settlement?

There are several different methods to reach a settlement. These include:

• spouses may draw up a settlement agreement themselves
• mediation
• negotiation between attorneys
• collaborative law
• litigation

Do I Need a Lawyer to Write My Property Settlement Agreement?

In simple divorces, where there is no property to be divided and there will be no support paid, it may be possible for divorcing spouses to draw up their own agreement. When an agreement will need to deal with real estate, retirement plans, spousal support and other issues, an attorney will likely be necessary. Drafting an agreement on these issues will require knowledge of Virginia's laws concerning divorce, real estate, tax and other issues, as well as knowledge of federal laws such as the Employee Retirement Income Security Act, the Internal Revenue Code and the Consolidated Omnibus Budget Reconciliation Act. Finally, there are hundreds of court cases which have created judge-made rules with which agreements must comply. Our family law attorneys have the knowledge and experience to prepare a property settlement agreement for you, or review one that your spouse's attorney has drafted.

What Property is Divided in a Divorce?

Each spouse typically keeps his or her "separate" property or debt. Property or debt is likely separate if it a) was acquired before the marriage or after the last separation of the parties, or b) was acquired at any time through inheritance or a gift from someone other than the other spouse. "Marital" property and debt is distributed between the spouses. Property or debt is likely marital if it was acquired during the marriage. Property includes not only land and buildings, but bank accounts, retirement plans, insurance policies, patents, cash, and any other type of assets.

Our attorneys frequently teach courses to other lawyers on family law issues. John Kitzmann, our managing attorney, recently taught a course on the division of property in divorce to lawyers in Richmond, Roanoke and Fairfax. You can review the course materials by clicking Classification of Property in Divorce.

Click here for more information on equitable distribution.

Who Will be Responsible for Debt?

Because it often takes many months or even years before a divorce can be finalized, who pays marital debt is a very important question. Many times, spouses can agree who will be responsible for the payment of debt both during the divorce process and afterwards. If the spouses are not able to agree, in the months leading up to the divorce trial, the court has the authority to order one spouse to pay the mortgage, health insurance and life insurance. Other debts cannot be dealt with by the court until the final divorce trial.

What Will Happen to the Marital Home?

Many spouses can agree on who will reside in the marital residence and who will pay the mortgage during the months before the finalization of the divorce. If the parties disagree on who will live in the house and who will pay the mortgage, the court has the authority to determine, on a temporary basis, which spouse can live in the house and which spouse will pay the mortgage. Depending on the situation, either the Juvenile and Domestic Relations District Court or the Circuit Court may be used for the determination. There are very complex tax and property issues that need to be considered when dealing with the payment of the mortgage, both during the time the spouses are separated, and after the divorce. Please contact us for more information.

With some exceptions, in a divorce trial, the judge can award the marital home to one spouse or the other if the property is deeded to both spouses and if the spouse receiving the home is financially able to take over the mortgage. If the home is not deeded to both spouses or if the spouse who wishes to receive the home cannot take over the mortgage, the judge has the power to order the sale of the home and divide the proceeds.

How is Property Preserved Until the Divorce is Finalized?

Unfortunately, sometimes one spouse will empty bank accounts, withdraw money from retirement funds, hide assets, and take other actions designed to prevent the other spouse from receiving his or her fair share of the property. There are a variety of tools that a skillful attorney can use to help protect assets before the divorce, or to recover assets that have been hidden or dissipated. These tools include specialized pleadings that can be filed with the land records, emergency injunctions freezing bank accounts, and orders appointing a disinterested person to run a business or handle its accounts.

Can Retirement Plans be Divided?

Like other property, the marital portion of retirement accounts or plans can be divided by agreement between the spouses. If an agreement cannot be reached, a court often has the power to divide the marital portion of retirement plans between the spouses. Retirement plans come in many shapes and sizes (for example, 401(K)s, 403(b)s, IRAs, profit sharing plans, stock options, etc.) Because of built in capital gains, cost-basis, and other issues, the Internal Revenue Code, the Employee Retirement Income Security Act and other laws and regulations that govern retirement plans should be considered prior to any division of retirement.

Can Military Retirement Pay be Divided?

Often the most valuable asset in a military divorce is the servicemember's military retirement benefits. In a Virginia divorce, the marital portion of a spouse's military retirement can be subject to division. The Uniformed Services Former Spouse's Protection Act (USFSPA) (10 USC § 1408) is a federal law that authorizes state courts to treat military retired pay as property solely of the servicemember or as jointly held marital property. The USFSPA does not mandate any particular division of retirement pay. The method of division is determined by each state according to that state's law regarding division of retirement pay. The USFSPA allows division of "disposable retired pay" only. This is currently defined as the total monthly pay, less amounts of retired pay forfeited due to court-martial, waivers for VA disability (Title 38), Civil Service Pay (Title 5) or DoD disability (Chapter 61, Title 10). Payment of benefits is also governed by the Defense Finance and Accounting Service (DFAS) regulations. Our attorneys have the knowledge and experience necessary to assist you with the division of military retirement pay. Please contact us for more information.

Will Spousal Support be Awarded?

Whether or not spousal support will be awarded depends upon a variety of factors, such as if the spouse seeking support is guilty of "fault", the incomes and expenses of each spouse, whether a spouse is voluntarily underemployed or voluntarily unemployed, the length of the marriage, etc. Please see our spousal support page for more detailed information or contact us.

How is Child Support Calculated?

Child support is typically determined according to a formula set forth in the Virginia State Code. Proper application of the formula can be complicated and may be impacted by health insurance, visitation arrangements, child care, transportation costs, imputed income, and other issues. Please see our child support page for more detailed information or contact us.

How is Custody and Visitation Determined?

The legal standard for deciding who will be awarded custody of a child is "what is in the best interests of the child." In practice, however, each judge has his or her own particular set of standards for how custody and visitation is determined. Please see our child support page for more detailed information or contact us.

What is the Procedure for Getting Divorced?

No-Fault/Uncontested Divorce

Different courts use different procedures. In Charlottesville and Albemarle County, most no-fault/uncontested divorces start with a property settlement agreement. Once the spouses have been separated for the required time period (six months or one year), one spouse files a legal pleading called a "complaint" in the circuit court along with the property settlement agreement. The complaint must be served on the other spouse. The other spouse can, but is not required to, file a legal pleading called an "answer". The complaining spouse and a corroborating witness will be required to answer questions under oath (a deposition), and a transcript of the deposition will be prepared. Another legal pleading called a "final order" will need to be prepared. The final order must use specific language (especially if child support or spousal support is involved). The final order, the transcript of the deposition, and a required state form are submitted to the court. If the judge finds all of the paperwork acceptable, he or she will sign the final order. If retirement plans need to be divided, additional orders may need to be prepared and submitted to the judge for approval.

Contested Divorce

A contested divorce is one where the spouses have not reached agreement on all of the issues. These issues need to be decided by the court. Every divorce is unique, but in very general terms, a contested divorce typically includes these steps:

• One spouse (the complaining spouse) files a complaint and has the complaint served on the other spouse (the answering spouse).
• The answering spouse files an answer to the complaint, and may want to file a cross-complaint for divorce.
• If the answering spouse files a cross-complaint, the complaining spouse must file his or her own answer.
• A pendente lite hearing can be scheduled for the court to make temporary arrangements for spousal support, child support, custody and visitation, the use of the marital home, health insurance, payment of the mortgage and other issues.
• If custody or visitation is contested, the court has the power to order psychological evaluations or a custodial evaluation.
• Each spouse can conduct discovery (a process where each spouse can ask the other party and third parties to answer written questions, provide documents and other evidence, allow access to property, and answer questions under oath).
• Each spouse and other witnesses can be required to answer questions under oath (depositions).
• There will be a trial where the judge will decide whether or not to grant the divorce and will determine the issues between you and your spouse. Both parties will likely have numerous witnesses testify and present numerous exhibits to the court.
• At the conclusion of the trial, the judge will make a ruling on all issues.
• If retirement or other property was ordered to be divided or transferred, additional orders or documents may need to be prepared.
• After the trial, providing specific procedures are followed, a spouse may file an appeal to the Virginia Court of Appeals.

Can You Get Your Name Changed in the Divorce?

If you are the spouse filing the complaint, the name change can be accomplished easily in the divorce. If you are the spouse answering the complaint, typically an additional motion and order must be filed to accomplish the name change.

Contact Us

If you would like more information, please call us at (434) 972-9600 or contact us.

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