Virginia Divorce
Information and FAQ
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, on the Chancery
side, has jurisdiction to hear actions for divorce. The name of the
action which initiates the divorce is called a Complaint for
Divorce, 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 » Return to top 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
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