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 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
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
No-Fault Agreed Uncontested Divorce Package for Dissolution of Marriage for people with Minor Children
No-Fault Agreed Uncontested Divorce Package for Dissolution of Marriage for Persons with No Children with or without Property and Debts
No-Fault Uncontested Agreed Divorce Package for Dissolution of Marriage with Adult Children and with or without Property and Debts
