Virginia Divorce Laws Property Settlement Agreement Separation Legal Attorneys Fairfax Richmond Beach LoudounUpdated on: 12:08 pm
VIRGINIA DIVORCE QUESTIONS ANSWERED
BY VIRGINIA DIVORCE LAWYERS
Virginia divorce attorneys of SRIS, P.C. have are experienced at handling divorce in Virginia. Our Virginia divorce lawyers have litigated cases in both the Virginia Circuit Courts and Juvenile and Domestic Relations District Courts which hear family law matters. Our Virginia divorce lawyers have six client meeting locations in Virginia to better serve you. We have meeting locations in Northern Virginia, Central Virginia, Hampton Roads/Tidewater Area & Western Virginia.
- In Virginia, our client meeting locations in Northern Virginia are in Fairfax & Manassas;
- In the Richmond Metro area, our client meeting location is in Fredericksburg & Richmond;
- In the Hampton Roads/Tidewater Area, our client meeting location is in Virginia Beach;
- In the Western part of Virginia, our client meeting location is located in Lynchburg.
If you wish to consult a SRIS, P.C. Virginia divorce attorney, please simply contact us 888-437-7747. A Virginia divorce lawyer of SRIS, P.C. will gladly consult with you regarding your Virginia divorce.
A Virginia divorce from bed and board may be decreed for cruelty, reasonable apprehension of bodily hurt, willful desertion or abandonment.
A. A divorce from the bond of matrimony in Virginia may be decreed:
(1) For adultery; or for sodomy or buggery committed outside the marriage;
(3) Where either of the parties subsequent to the marriage has been convicted of a felony, sentenced to confinement for more than one year and confined for such felony subsequent to such conviction, and cohabitation has not been resumed after knowledge of such confinement (in which case no pardon granted to the party so sentenced shall restore such party to his or her conjugal rights);
(4), (5) Repealed.
(6) Where either party has been guilty of cruelty, caused reasonable apprehension of bodily hurt, or willfully deserted or abandoned the other, such divorce may be decreed to the innocent party after a period of one year from the date of such act; or
(7), (8) Repealed.
(9)(a) On the application of either party if and when the husband and wife have lived separate and apart without any cohabitation and without interruption for one year. In any case where the parties have entered into a separation agreement and there are no minor children either born of the parties, born of either party and adopted by the other or adopted by both parties, a divorce may be decreed on application if and when the husband and wife have lived separately and apart without cohabitation and without interruption for six months. A plea of res adjudicata or of recrimination with respect to any other provision of this section shall not be a bar to either party obtaining a divorce on this ground; nor shall it be a bar that either party has been adjudged insane, either before or after such separation has commenced, but at the expiration of one year or six months, whichever is applicable, from the commencement of such separation, the grounds for divorce shall be deemed to be complete, and the committee of the insane defendant, if there be one, shall be made a party to the cause, or if there be no committee, then the court shall appoint a guardian ad liter to represent the insane defendant.
(b) This subdivision (9) shall apply whether the separation commenced prior to its enactment or shall commence thereafter. Where otherwise valid, any decree of divorce herein before entered by any court having equity jurisdiction pursuant to this subdivision (9), not appealed to the Supreme Court of Virginia, is hereby declared valid according to the terms of said decree notwithstanding the insanity of a party thereto.
(c) A decree of divorce granted pursuant to this subdivision (9) shall in no way lessen any obligation any party may otherwise have to support the spouse unless such party shall prove that there exists in the favor of such party some other ground of divorce under this section or§ 20-95.
B. A decree of divorce shall include each party’s social security number, or other control number issued by the Department of Motor Vehicles pursuant to§ 46.2-342.
The granting of a Virginia divorce from bed and board shall not be a bar to either party obtaining a divorce from the bonds of matrimony on any ground which would justify a divorce from the bonds of matrimony if no divorce from bed and board had been granted, unless the cause for absolute divorce was existing and known to the party applying for the divorce from the bonds of matrimony before the decree of divorce from bed and board was entered.
Virginia Code § 20-121. Merger of decree for divorce from bed and board with decree for divorce from bond of matrimony
In any case where a Virginia decree of divorce from bed and board has been granted, and the court shall determine that one year has elapsed since the event which gave rise to such divorce or, in any case where the parties have entered into a separation agreement and there are no minor children either born of the parties, born of either party and adopted by the other or adopted by both parties, that six months has elapsed since such event, and the parties have been separated without interruption since such divorce was granted and no reconciliation is probable, it may merge such decree into a decree for divorce from the bond of matrimony upon application of either party. The injured party need not give the guilty party notice of his application to the court if such application is limited to such merger nor of the taking of depositions in support thereof, but shall give due notice if he raises new matters. If the guilty party initiates proceedings for such merger he shall give the other party ten days’ notice thereof. No final decree for divorce entered in such a case shall terminate or otherwise affect any restraining order, or order for the payment of costs, counsel fees, support and maintenance for a spouse or child or children except as specifically provided in such decree. The provisions of this section shall apply to the divorces from bed and board, which have been heretofore granted.
In any Virginia divorce suit wherein a bill of complaint or cross-bill prays for a divorce from the bonds of matrimony under § 20-91 or prays for a divorce from bed and board under § 20-95, at such time as there exists in either party’s favor grounds for a divorce from the bonds of matrimony under § 20- 91 (9), either party may move the court wherein such divorce suit is pending for a divorce from the bonds of matrimony on the grounds set out in § 20-91 (9) without amending the bill of complaint or cross-bill.
Any absolute divorce granted in this Commonwealth of Virginia under circumstances in which the bill of complaint prayed for a divorce from bed and board with leave to merger the same into an absolute divorce at the end of the statutory period and in which the decree of absolute divorce was entered with no decree from bed and board because the statutory period elapsed prior to the entry of said decree, is hereby validated, provided such divorce proceeding was otherwise conducted according to law.
Virginia Code § 20-121.01. Decree of divorce from bonds of matrimony without decree from bed and board
In any case where willful desertion or cruelty is the ground for divorce in Virginia and the bill of complaint prays for a divorce from bed and board the court may enter a decree of divorce from the bonds of matrimony without the entry of a decree from bed and board if the statutory period, as set out in § 20-121, has elapsed prior to the entry of said decree and if the court shall be of the opinion that no reconciliation has taken place, or is probable.
Our clients frequently ask us questions about divorce in Virginia. The following are some of the issues asked about:
Yes – there are two types of divorces in Virginia. The first is called “a mensa et thoro” (divorce from the bed and board). This is what’s known as a “qualified” divorce, meaning the parties are legally separated – but during the term of this qualified divorce they may not remarry.
The second type of divorce in Virginia is called “a vinculo matrimonii” (divorce from the bonds of marriage). This type of divorce is the most common and is “absolute” – meaning once granted – the marriage is permanently ended. The former partners are free to marry again if they so choose. Everything following is based on this absolute divorce.
There are as many reasons for people seeking a divorce in Virginia as there were for getting married in the first place. We won’t get into the personal aspects of divorce, except to say that old adage “Marry in haste, repent in leisure” is as true today as it was when first penned.
In Virginia, there are many grounds for granting a “for fault” divorce. Some of these grounds include: Willful desertion or abandonment, cruelty, adultery (and other sexually related acts), or conviction of a felony. However, the spouse being sued for divorce in Virginia can raise “defenses” to these grounds, in order to alter, refute or mitigate the “for fault” charges.
Yes, The Commonwealth of Virginia permits “no fault” divorce. But certain requirements must be met in order to receive such a divorce. The divorcing couple must demonstrate they’ve lived apart – both continuously and intentionally – for a period of at least one year.
There is an exception to this Virginia No fault Divorce Law. If no minor children are involved, and the parties have entered into a property settlement agreement, the time of separation required is reduced to six months before a no-fault divorce can be granted.
Property Distribution Of Divorcing Parties in Virginia
One of the most complex areas of Virginia divorce law relates to the distribution of property. The method of distribution used in Virginia is called “equitable distribution.”
In Virginia, equitable distribution usually is determined at the conclusion of the divorce proceedings. This distribution determines the relative rights and interests of the divorcing parties in property acquired before, during or even in some cases after the marriage. Virginia sorts the property under three classifications to determine who gets what.
In Virginia, there’s “Marital Property” “Hybrid Property” and “Separate Property.”
Determining the parties property rights is a complex and many times difficult and painful task. It’s also one major area fraught with ill-will and animosity. Skilled and aggressive legal representation is essential in achieving an equitable, fair and desired outcome. Many times one spouse is so distraught, they literally are not thinking straight. Competent representation insures all options are thoroughly investigated – without one party being taken advantage of over the other.
(Just listen to the many country and western songs about this very topic. I’m sure you remember one of the most famous: “She got the mine and I got the shaft.” That’s one good reason why having a skilled divorce attorney is so vitally important!)
Another complex area of Virginia divorce law requiring thorough and careful legal representation is spousal support – or more commonly known as alimony. In Virginia, spousal support may be awarded to assist a financially dependent party depending upon circumstances.
Such awards vary greatly, and are based on a host of factors. Age, duration of the marriage, earning potential, assets, and marital history all play a part in the support settlement. Unlike in former days, it’s now common for spousal support in Virginia to be awarded to either the woman or the man.
It’s imperative to get a fair judgment right at the beginning, because changing the support schedule later on down the road after the divorce is finalized is a costly and difficult affair.
Child Custody in Virginia – “The Best Interests Standard”
Along with property distribution, the custody of minor children is often the most contentious and heart wrenching in divorce and other family law matters.
In Virginia, the Court is guided by the “best interests of the child” legal standard in determining who gets custody. The legal elements and factual factors are oftentimes complex and lengthy. Custody may be awarded “jointly” or “solely.” In the absence of an agreement, the court will also decide visitation rights.
Here’s the text from the appropriate Virginia Statutes: Paragraph 20-124.2. Court-ordered custody and visitation arrangements.
“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 joint legal custody, both parents share the access to educational, health, and other records. Both also have equal footing in making decisions where the welfare of the child is concerned. There is also joint physical custody – which can be somewhat different.
An experienced Virginia divorce attorney will be able to spell out each type of custody and what that means for both the parents and the children.
In Virginia, child support obligations are largely determined by the needs of a child, the ability of a parent to pay, and Virginia’s statutory support guidelines. Again this a complex area – and one where the help of a lawyer is in everyone’s best interests.
A Property Settlement Agreement (PSA) is a legal contract between the divorcing parties. The PSA is a mutual, contractual settlement of issues relating to the divorce and can be enforced by the court. Of course, skillful legal representation is essential to successfully negotiating a PSA that protects a party’s rights.
The First Step To Take When Facing The Prospect Of A Divorce Or Other Family Law Issue
We’ll be quite frank: The complexity and high stakes nature of divorce and other family law matters in Virginia require skilled and experienced legal representation. If you are contemplating divorce, or have already been served with divorce papers, an initial consultation is the absolute minimum step you should take. Then you’ll know what your rights are, and more importantly – how to protect them.
We understand that divorce is a trying, difficult and painful time. But believe us when we say: It’ll be even more difficult after the divorce is over and you’re left with not only the heartbreaks – but the short end of the financial and custody stick as well.
The following are some of the different holdings by the appellate courts of Virginia regarding divorce in Virginia. Clients should be aware of these holdings so that they may be better informed about some of the legal ramifications about obtaining a divorce in Virginia.
The Virginia Courts have long held that divorces granted in another state should be recognized as a valid divorce under the full faith and credit clause of Federal Constitution. An example of this can be found in the case of Humphreys v. Humphreys, 139 Va. 146, 123 S.E. 554, Va. 1924., June 12, 1924. The Humphreys Court held the following: Validity of foreign divorce should not be denied by courts except where to recognize such divorce would be violation of morals or public policy of state.
Virginia requires the party alleging adultery by the other spouse to prove it by clear and convincing evidence. In Haskins v. Haskins, 188 Va. 525, 50 S.E.2d 437, Va. 1948, November 22, 1948, the Court held that a charge of adultery as ground for divorce is not required to be proved beyond a reasonable doubt as in a criminal proceeding, but evidence must be at least clear and positive and convincing.
If a husband and wife contract via property settlement agreement as to the support and maintenance, then the court will uphold the contract provided the contract was via a bona fide property settlement agreement. In Gloth v. Gloth, 154 Va. 511, 153 S.E. 879, Va. 1930, June 12, 1930, the Court held that in divorce suits, court had power to approve and confirm contract of parties as to property settlements and support and maintenance.
A no fault divorce also known as a divorce based on irreconcilable differences does not prevent one party from seeking spousal support from the other party while the suit is pending. The Supreme Court of Virginia held in Mason v. Mason, 209 Va. 528, 165 S.E.2d 392, Va. 1969, January 20, 1969 that the fact that husband was granted divorce under ‘non-fault’ statutory provision entitling either spouse to divorce when they have lived separate and apart for two years did not preclude award of alimony to wife.