This is a condensed version of an article originally published on the General Counsel P.C. website. Here is a LINK to the full article.
The idea of filing for divorce may be overwhelming. Naturally, people may worry about finances, children and where to live. On top of that, the actual process of filing for divorce may seem daunting. Following is a quick primer on things an individual should know about getting divorced in Virginia.
#1. How to File for Divorce in Virginia
An individual must be a legal resident in Virginia for at least six months before filing for divorce. If the couple has minor children, they must be separated for one year before filing for divorce. If the couple doesn’t have children, they can file for divorce after living separately for six months.
#2. Grounds for Divorce in Virginia
In Virginia, the person filing for divorce needs to have “grounds” for divorce. The fault grounds authorized in Virginia include: adultery, felony, cruelty and desertion. Alternatively, a spouse may file for “no-fault divorce” after separation.
#3. A Couple Can Have an Uncontested Divorce
If both spouses agree on all divorce matters, the divorce is “uncontested.” Uncontested divorces are typically settled quicker and are less expensive. To seek an uncontested divorce, the parties must agree to file for a “no-fault” divorce, meaning that it’s not either spouse’s fault that the marriage is ending.
#4. Virginia Follows the “Equitable Distribution” Method of Property Division
In Virginia, in the event of a divorce, courts follow the equitable distribution method of dividing property. Under equitable distribution, courts will divide property “equitably,” or fairly, between spouses, but not necessarily evenly. Upon divorce, a couple’s property is classified as marital, separate, or part marital and part separate
#5. How Child Custody and Visitation is Determined
In Virginia there are two types of child custody: legal custody and physical custody. Physical custody refers to where a child spends the majority of his or her time. Legal custody refers to the right to make important health, education, and welfare decisions for a child.
Custody and visitation matters can be settled through negotiation or mediation between the parties. However, if the parents are unable to agree, they may petition the court to decide these issues. Even if the parties enter into an agreement establishing custody, visitation, and child support matters, the court must approve the agreement.
#6. How Child Support is Determined
In Virginia, both parents are required to support their children. Since Virginia law assumes the parent with primary custody is already supporting any children, the parent without primary custody is typically required to pay child support to the parent with primary custody.
Courts typically follow the guidelines set out in the Virginia Code when determining a child support obligation. However, a parent can request a deviation from the guidelines and ask the court to raise or lower that amount.
#7. How Spousal Support is Determined
Courts have discretion when determining whether a spouse should receive support and what amount of support should be awarded. When making these determinations, courts consider many factors, including:
- The obligations, needs, and financial resources of the spouses;
- The standard of living established during the marriage;
- The duration of the marriage;
- The age and physical and mental condition of the spouses;
- The monetary and nonmonetary contributions of each spouse to the well-being of the family;
- The property interests of the spouses and division of property during divorce proceedings; and
- The earning capacity, including the skills, education and training of the spouses.
The court may also consider other factors, including circumstances that contributed to the dissolution of the marriage, such as any instances of adultery or other grounds for divorce. Spouses may also be barred from receiving spousal support, such as in divorce resulting from adultery.
#8. A Couple Can Enter into a Separation Agreement
If the spouses can agree on divorce related issues, they can enter into a separation agreement. A separation agreement establishes the parties’ rights and obligations regarding marital debts and assets after a divorce. If the couple has children, the separation agreement will likely also address child support and child custody and visitation issues. However, even if the parties agree on issues of child custody, support, and visitation in a separation agreement, the court must approve the agreement to ensure it is in the best interests of the child.
#9. Marital Agreements Will Likely be Enforced
Premarital, or prenuptial agreements, are agreements a couple enters into before getting married that become effective once the parties are married. The agreement can discuss issues such as what will be classified as separate and marital property, property division after a divorce, spousal support, and the allocation of labor and resources during the marriage.
#10. A Couple Can Choose an Alternative Dispute Resolution Method of Divorce
Not all divorces need to be contested and decided by a judge in a courtroom. Spouses that are more amicable can seek alternative dispute resolution rather than a court hearing. Instead of a hearing in front of a judge, spouses can proceed with a mediated divorce.
Another method of divorce alternative dispute resolution is collaborative divorce. Collaborative divorce involves out of court sessions where spouses receive legal advice from attorneys trained in the collaborative process with the goal of an amicable and fair resolution for both parties.
Conclusion: Divorce may seem overwhelming, but it doesn’t have to be. An experienced family law attorney can help you prepare and guide you through the process. Family law attorneys at General Counsel, P.C. are experienced in all aspects of divorce and can help you navigate the process. Contact us today at 703-991-7973 or email@example.com and see how we can help you.