Requirements of Residency and Where You Should File:
Filing for divorce requires that one party has to be a bona fide and actual resident of the Commonwealth of Virginia for a minimum of sixth months before the start of the divorce suit. The circuit court has jurisdiction of all lawsuits for the annulment or the affirmation of marriage, and also for all divorces, as well as separate maintenance claims. All such suits will be heard by a judge and as completely equitable claims. [Based on Code of Virginia, Title 20, Section 20-96]
Divorce – Legal Grounds
A divorce can be granted in the commonwealth of Virginia on these grounds:
- If you are living separately and do not have a cohabitation and this has been the case without any interruption for one year. If there were no children from the marriage, six months is the time limit.
- For the commission of adultery.
- In a case where either party was convicted for a felony, was sentenced by a judge to jail or prison for a year or more, and was confined for the felony before the conviction. Cohabitation may not have been restarted after the confinement became known.
- In a case where either married person was guilty of any type of cruelty, or caused the other party to fear bodily harms, or deserted/abandoned the other party. Divorce in this case can be decreed to the non-guilty party after one year has passed from the commission of such an act.
What Is Legal Separation
A divorce from bed/board can be decreed by the judge for the reason of cruelty, reasonable fear of bodily injury, deliberate desertion or fear of abandonment. When a divorce from bed/board is granted, the court can demand that both of the people in the marriage be separated perpetually and protected in both their property and person. Any decree of this sort has to operate on property that was acquired after the court decision, and upon both the legal capacities and personal rights of both partners, and as a divorce decree from all bonds of matrimony. The only exception is that neither of the parties can marry again during the entire life of the other person.
If there is a case where a divorce decree from bed/board was granted, and the court determines that 1 year had passed since the events that caused the divorce, and there were no minor children that were born from either person, and that 6 months had passed since any related event, and the persons were separated with no interruption since the divorce, and any reconciliation is unlikely, it can merge this type of decree for a divorce from all bonds of matrimony when either party applies for it. [Based on Code of Virginia, Title 20, Sections 20.95, 20-116 and 20-121]
Requirements of Mediation or Counseling
Either party to a petition where there is a child whose visitation, support or custody is being contested, needs to provide proof that they have attended in the last 12 months before the appearance in court, or that they will attend within forty five days after that, any educational class or seminar that is court approved, except note that the court can mandate that both of the parties go to such a class or seminar in cases that are uncontested, if the court finds cause. [Based on Code of Virginia, Title 20, Section 20-103]
The Division of Marital Property
The Commonwealth of Virginia is a state of equitable distribution. This means that if the parties are not able to agree, all marital property is divided in an equitable way, but this is not always equal. The amount of any transfer of marital property that is jointly owned or any division, and the monetary aware appoint, marital debt apportionment and payment methods have to be determined by a court after the following factors are evaluated:
- Monetary and non-monetary contributions of both parties to the family’s well being.
- Monetary and non-monetary contributions of both parties pertaining to the acquisition, care/maintenance of the marital property of both parties.
- The marriage’s duration.
- The physical and mental status of each person, as well as their ages.
- How/when pieces of marital property were acquired.
- Liabilities and debts of both parties, what the basis is for the debts/liabilities, and any property that can be security for the debts and liabilities.
- Whether marital property is liquid or not liquid.
- Any tax consequences to both parties.
- The use and/or expenditure of any marital property for a separate purpose that is not related to the marriage.
- Any other related factors that the court thinks is needed to think about to arrive at a fair award.
Separate property shall be defined as:
- All real and personal property that was acquired by either person before the union
- All property that was acquired during the union by bequest, descent, devise, gift or survivorship from any source other than that person.
- Any property that was obtained during the union, which was in exchange for any separate property, as long as the property that was acquired during the marriage union is maintained as a complete separate party. [Based on Code of Virginia, Title 20, Section 20-107.3]
Alimony, Spousal Support and Maintenance:
The court has the discretion to decree that any support and maintenance of a spouse can be done in payments for a certain period of time, or in payments for a duration of time that is not specified or in a single lump sum. The court will consider all circumstances that led to the ending of the marriage, when it is trying to determine if an award for support and maintenance will be made. The court will consider these factors:
- Any obligations, financial resources and needs for each party. This can include income from profit sharing and retirement plans and from pensions
- What the standard of living was during the union
- How long the marriage lasted
- What the physical/mental condition and ages of the parties were at the time of the marriage and at the time of the separation
- How much the physical and mental condition and age of any children of the two people would make it clear that one party will not work outside the home.
- How much each party contributed to the family’s well being.
- The parties’ property interests. This includes real/personal, both intangible and tangible.
- Any provisions that were made regarding the division of marital property.
- The capacity for earning for both people, including the education, training and skills of both and the opportunities for employment at present for both.
- How long it will take and what it will cost for one of the parties to obtain education, employment and training to boost his or her ability to earn income.
- Any decisions about career, employment, education, parenting and economics that were made by both parties during the union and how they affected earning potential. This includes the time period that either party has not been in the job market.
- If either person contributed to getting training, education or attaining a profession or strong career position for the other person. If either person has contributed significantly financially to the education and professional status of the other party.
- Any other factors, such as tax consequences for either person, as will be necessary to determine equities between both people.
Virginia Laws for Child Custody
To determine who shall obtain custody of children, the court has one major duty above all others – the court has to give its main consideration to the best interests of the children. The court will assure that any minor children will have frequent content with each parent when it is appropriate, and the court will attempt to ensure that each parent will split the responsibilities of raising the children. There will be no situation where the court will favor either party over the other according to the law, and the court can aware either sole or joint custody. To determine what the best interests of the child are, the court will consider these factors:
- The age and the mental and physical condition of each child, and consideration will be made of the developmental needs of each child, which can change.
- The physical, mental condition and age of the mother and father.
- What the relationship is between the child and parent, whether the relationship was a positive one in the past, and consideration will be made to the involvement of each parent in each child’s life in a positive way, and also with the ability to meet all emotional, physical and intellectual needs of each child.
- Each child’s needs, with consideration being given to all other key relationships of the child, such as brothers and sisters, extended family and friends and peers.
- What the role is of each parent with each child and what it will be down the road, in terms of how the child is raised.
- How much each party is going to support the continuing contact/relationship of the child with the other party, such as whether either parent has tried to deny access to the child for the other party.
- What the willingness is and the ability of each party to keep a close relationship with each child, and how much each parent can cooperate and solve any disputes that affect each child.
- What the preference is for each child, if the court decides that the child has the understanding, age and intellect to give a preference.
- Any family abuse history.
- Any other factors that are deemed necessary by the court for consideration.
The state of Virginia uses the model of Income Shares as the way to determine what child support should be. This method utilizes the support level on the combination of income of both parties. There has to be a presumption of rebuttal in any administrative or judicial proceeding for any type of child support. This includes cases that have split custody or also shared custody, so that the award amount which will occur is the right amount.
For any proceeding on how to determine child support, the court has the authority to demand that either party give health care/insurance coverage for all dependent children, if it is reasonable, and also coverage for the ex-spouse. In any court hearing on the issue of figuring out child support, the court has the authority to order either party to:
- Keep any life insurance policy that exists on either person, as long as the party can designate a new beneficiary.
- Designate children of the parents as the beneficiaries of the entire policy, or as a part of it, as long as the person has an obligation to meet child support payments for each child.
A premarital agreement has to be in writing and signed by each person. Any such agreement is enforceable without any other consideration and is effective once the parties are married. [Based on Code of Virginia, Title 20, Section 20-149]]