Virginia Divorce Law
Divorce and Legal Separation in Virginia
Divorce and Legal Separation in Virginia
Virginia Divorce Basics
To file for divorce or annulment, either spouse must be a resident of Virginia for at least six months prior to filing.
If a member of the U.S. armed forces has been stationed or resided in Virginia for at least six months immediately preceding the commencement of the suit, the person shall meet the residency requirement. Being stationed or residing in the state includes members of the armed forces stationed upon a ship having its home port in Virginia or at an air, naval or military base located within the state.
Any member of the U.S. armed forces who was stationed in any territory or foreign country at the time of, or immediately preceding, the initiation of the suit shall meet the residency requirement if he/she was domiciled in Virginia for the six month period immediately preceding his/her being stationed abroad.
In a suit for annulment, affirmance, or divorce, the complaint may be filed in the circuit court in the county or city in which the parties last cohabited, or at the option of the Plaintiff, filing party, in the county or city in which the Defendant, other party, resides, if he/she is a resident of Virginia, In cases where an order of publication may be issued against the Defendant, venue may also be in the county or city in which the Plaintiff resides.
If there are no children from the marriage, the couple must be separated for at least six months and have a written property settlement agreement before filing. If there are children from the marriage, the couple must be separated a minimum of one year before filing.
If the party who changed his/her name when he/she married asks, either in the divorce Complaint or in any motion filed with or after the Complaint, to resume their maiden or former name, upon decreeing a divorce from the bond of matrimony, the court may restore the party’s former name or maiden name by separate order.
Legal Grounds for Divorce
- 1. Adultery, or for sodomy or buggery when committed outside the marriage, and the parties have not voluntarily cohabitated after knowledge of the adultery, sodomy or buggery and it did not occur more than five years before institution of the suit;
2. Felony conviction after the date of marriage with at least one year of imprisonment, and cohabitation has not been resumed after knowledge of this confinement;
3. Cruelty, causing reasonable apprehension of bodily harm, or willful desertion or abandonment, and it has been a period of one year from the date of the act before the application by the innocent party is filed; and
4. Voluntary separation for six months with a written separation agreement and no children (either natural or adopted); otherwise, separation for at least one year.
The following marriages are void and prohibited by Virginia statute:
- Bigamy, marriage entered into prior to the dissolution of an earlier marriage by one of the parties, where his/her former husband or wife is still living;
- Marriage between an ancestor and descendant, between a brother and sister, (half, whole, or adoptive), an uncle and a niece or between an aunt and a nephew (half or whole);
- Either or both of the parties, at the time of the marriage, are at least 16 years of age, but under the age of 18 years and did not obtain consent from their parent or guardian, unless he/she has been previously married or has been emancipated; and
- Either or both parties is under the age of 16 years, unless the female is or has been pregnant within nine months of the marriage, and has obtained consent from a parent or guardian.
If either party to a marriage lacked capacity to consent to the marriage at the time of the solemnization, due to mental incapacity or infirmity, the marriage is voidable. It may be declared void by a decree of divorce or nullity.
The following situations render a marriage voidable and may be voided with entry of a decree of annulment when one party files a complaint and provides proof of the complaint:
- One party is naturally or incurably impotent at the time of entering into the marriage contract;
- Prior to the marriage, either party, without the knowledge of the other, had been convicted of a felony;
- At the time of the marriage, the wife, without the knowledge of the husband, was pregnant by some person other than the husband;
- The husband, without the knowledge of the wife, had fathered a child born to a woman other than the wife within ten months after the date of the solemnization of the marriage; or
- Prior to the marriage, either party had been, without knowledge of the other, a prostitute.
Marriage and/or civil unions, partnership contracts between persons of the same sex are prohibited. Any such marriage, civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable.
When the validity of any marriage shall be denied or doubted by either of the parties, the other party may institute a suit for affimance of the marriage. Upon proof of the marriage’s validity, it shall be decreed valid and this decree shall be conclusive upon all persons concerned.
To file for affirmance, one of the parties must be domiciled in, is and has been an actual bona fide resident of Virginia at the time of bringing suit.
Generally, the court shall have no authority to order the division or transfer of separate property or marital property which is not jointly owned, with the exception of some percentages of pensions, profit-sharing, deferred compensation plans or retirement benefits as described and allowed by statute.
Upon decreeing the dissolution of a marriage or a divorce from the bond of matrimony, the court, upon request of either party, shall determine the legal title as between the parties, and the ownership and value of all property, real or personal, tangible or intangible, of the parties. The court will also determine which property is separate property, which is marital property, and which is part separate and part marital.
Statute defines the following as separate property:
- All property, real and personal, acquired by either party before the marriage;
- all property acquired during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party;
- All property acquired during the marriage in exchange for or from the proceeds of sale of separate property, provided that it is maintained as separate property;
- The part of any property classified as separate pursuant to the applicable statutes regarding partial marital and partial separate property;
- Income received from separate property during the marriage, if not attributable to the personal effort of either party; and
- The increase in value of separate property during the marriage, unless marital property or the personal efforts of either party have significantly contributed to the increases and then only to the extent of the increases in value attributable to such contributions.
- All property titled in the names of both parties, whether as joint tenants, tenants by the entirety or otherwise, except when separate property is re-titled in the joint names of the parties, if the property is retraceable and was not a gift, the re-titled property shall retain its original classification;
- The part of any property classified as marital pursuant to the applicable statutes regarding partial marital and partial separate property;
- All other property acquired by each party during the marriage which is not defined as separate property; and
- All property including that portion of pensions, profit-sharing, deferred compensation or retirement plans of whatever nature, acquired by either spouse during the marriage, and before separation of the parties, is presumed to be marital property in the absence of satisfactory evidence otherwise.
- In the case of income received from separate property during the marriage, such income shall be marital property only to the extent it is attributable to all the personal efforts of either party;
- In the case of the increase in value of separate property during the marriage, such increase in value shall be marital property only to the extent that marital property or the personal efforts of either party have contributed to such increases, provided that any such personal efforts must be significant and result in substantial appreciation of the separate property.
- The contribution, monetary and nonmonetary, of each party to the well-being of the family;
- The contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of the couple’s marital property;
- The length of the marriage;
- The ages and physical and mental condition of the parties;
- The circumstances and factors which contributed to the dissolutions of the marriage, specifically including adultery; conviction, sentencing and confinement for a felony; and cruelty, apprehension of bodily harm or willful abandonment;
- How and when specific items of such marital property were acquired;
- The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities;
- The liquid and non-liquid character of all marital property;
- The tax consequences to each party;
- The use or expenditure of marital property by either of the parties for a non-marital separate purpose of the dissipation of such funds, when it was done in anticipation of divorce or separation, or after the last separation of the parties; and
- Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.
Maintenance and Spousal Support
When determining the nature, amount and duration of an award for maintenance the court shall consider the following factors:
- The obligations, needs and financial resources of the parties, including income from all pensions, profit sharing or retirement plans, of whatever nature;
- · The standard of living established during the marriage;
- The length of the marriage;
- The age and physical and mental condition of the parties and special circumstances of the family;
- 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;
- The contributions, monetary and non-monetary, of each party to the well-being of the family;
- The property interests of the parties, both real and personal, tangible and intangible;
- The provisions made with regard to the marital property
Child Custody and Support
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.
In any case in which custody or visitation of minor children is at issue, the court may order an independent mental health or psychological evaluation to assist the court in its determination of the best interests of the child.
The court may award joint custody or sole custody.
In determining best interests of a child for purposes of determining custody or visitation arrangements, the court shall consider the following:
- The age, physical and mental condition of the child(ren), giving due consideration to the child(ren)’s changing developmental needs;
- The age, physical and mental condition of each parent;
- 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;
- The needs of the child(ren), giving due consideration to other important relationships of the child(ren), including siblings, peers and extended family members;
- The role that each parent has played and will play in the future, in the upbringing and care of the child(ren);
- The propensity of each parent to actively support the child(ren)’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, (this may be disregarded if the court finds there is a history of family abuse or sexual abuse);
- The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child(ren), and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child(ren);
- The reasonable preference of the child(ren), if the court deems the child(ren)to be of reasonable intelligence, understanding, age and experience to express such a preference;
- Any history of family abuse or sexual abuse; and
- Any other factors as the court deems necessary and proper to the determination.
Virginia’s child support guidelines are based on the Income Shares Model. The formula uses the combined monthly gross income of both parents. There is a table for incomes up to a total of $10,000 with various child support amounts set by the number of children being supported. For gross monthly incomes above $10,000, there are set percentages of the gross income to be added to the amount of child support ordered for incomes of $10,000.
Gross income includes income from all sources and includes salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits (except), workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, veterans’ benefits, spousal support, rental income, gifts, prizes or awards.
Gross income shall be subject to deductions of reasonable business expenses for persons with income from self-employment, a partnership, or a closely held business. One-half of any self-employment tax paid shall be deducted from gross income.
Gross income does not include the following:
- Benefits from public assistance and social services programs;
- Federal supplemental security income benefits;
- Child support received; or
- Income received by the payor from secondary employment income not previously included in gross income, where the payor obtained the income to discharge a child support arrearage established by a court or administrative order and the payor is paying the arrearage pursuant to the order.
The court may order that support be paid for any child of the parties. The court shall also order that support will continue to be paid for any child over the age of 18 who is a full-time high school student; not self-supporting; and living in the home of the party seeking or receiving child support until the child reaches the age of 19 or graduates from high school, whichever occurs first.
The court may also order the continuation of support for any child over 18 years of age who is severely and permanently mentally or physically disabled; unable to live independently and support him/herself; and resides in the home of the parent seeking or receiving child support.
Legal Separation vs. Divorce from Bed and Board
Divorce from Bed and Board:
In granting a divorce from bed and board, the court may decree that the parties be perpetually separated and protected in their persons and property. This decree operates on property acquired thereafter, and upon the personal rights and legal capacities of the parties, as with a decree for divorce from the bond of matrimony, except that neither party shall marry again during the life of the other.
There are two grounds for a Bed and Board Divorce:
- Cruelty and reasonable expectation of bodily harm; and
- Willful desertion or abandonment.
A divorce from bed and board does not bar either spouse from obtaining a divorce from the bonds of matrimony on any ground which would have justified 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.
Upon the application by either party, the court may merge a decree of divorce from bed and board into a decree for divorce from the bond of matrimony if the following conditions are met:
- One year has passed since the event which gave rise to the divorce from bed and board, (or in any case where the parties have entered into a separation agreement and there are no minor children of the marriage, that six months has elapsed);
- The parties have been separated without interruption since the divorce from bed and board was granted; and
- No reconciliation is probable.
Links to State Resources
- Individual Circuit Court Homepages
Links to Virginia's Circuit Court websites; provided by Virginia's Judicial System.
- Pro Se Divorce Package
Brochure outlining legal procedures for obtaining a divorce in Virginia, provided by the Fairfax Bar Association and the Fairfax Circuit Court.
- Virginia Child Support
This Web site provides information on the programs, activities and resources that the Virginia Department of Social Services provides.
- Virginia Code, Title 20 – Domestic Relations
Links to texts of Virginia statutes regarding marriage, divorce, annulment, support and custody.