Nuts, bolts, and miscellany regarding divorce in Virginia.
Divorce is not an every day event unless, of course, you are a divorce attorney. For most, it is a once in a lifetime occurrence that, hopefully, will never be repeated.
Divorce is intimidating, complex, potentially costly, and fraught with pitfalls for laypersons as well as lawyers who do not spend substantial time practicing divorce law.
Therefore, you should not expect to attain mastery over the topic on this or any other website. What you should aim for is a general grasp of the central topics that arise in most divorce cases. Start thinking about your specific situation in the context of what you learn and write down questions you might like to ask an attorney.
On our website you will find a page devoted to each of the main divorce topics along with additional pages and posts that delve into more detail. Feel free to peruse those resources as well while formulating your questions.
People facing divorce usually want to learn about the 4 main subjects of divorce, which are:
- Dividing property in divorce, also known as “equitable distribution”
- Spousal support, also known as “alimony”
- Child custody and visitation
- Child support
Divorce lawyers receive a lot of questions from people who are learning about divorce for the first time. Questions are a good sign because they indicate engagement and learning. Questions and answers are vital to informed decision-making.
Although it would be impossible to answer every possible question here, we hear many of the same inquiries on a regular basis. The following is a sample of some of the more common things we are asked along with some of our general responses.
Please remember that these questions and answers are not legal advice. They are intended for educational purposes only.
Common questions about Virginia divorce:
Answers to common questions about Virginia divorce:
“Divorce” is much more than just the legal end of a marriage. “Divorce” means many different things many different people.
- Divorce is an emotional experience.
- Divorce is a life-changing experience.
- Divorce is a personal experience.
How you experience “divorce” directly affects your definition of divorce.
It is easy for lawyers to focus on “divorce” in its technical sense and overlook their clients’ emotional journey. Divorce lawyers must be attuned to clients’ emotional states and adapt the pace and process of divorce to them whenever possible. On the other hand, a person going through divorce must try hard to separate the emotional experience from the legal process in order to assure that the decisions they make along the way are well-grounded in reason and understanding. This is often easier said than done.
Your experience of divorce and your definition of divorce will be unique. It will shape your life and the lives of those around you. You will evolve during the process. The mixed emotions, doubts, concerns, and many other feelings you will cycle through are a normal part of the experience. Recognize them. Own them.
Your divorce attorney’s should be there to guide you through the legal process and protect your rights, interests, and well-being while you are experiencing “divorce” on all those other levels.
Divorce is about endings, new beginnings, self-discovery, and finding peace and a path forward. The Moore Law Firm believes that educating clients about the divorce process strengthens and empowers them as they discover their unique definition of divorce.
Divorce is the legal act that terminates the marriage. Virginia statutes often refer to this as dissolution of the marriage. Technically, the divorce occurs when a circuit court judge signs a final decree of divorce.
When most people refer to a divorce they mean an “absolute divorce”. Divorce lawyers who wish to sound fancy call this “divorce a vinculo matrimonii“. An absolute divorce results in complete termination of the marriage.
There is a second type of divorce known as a “bed and board divorce”, referred to by attorneys as a “divorce et mensa et thoro”. A bed and board divorce does not end the marriage. Only an absolute divorce accomplishes that. A bed and board divorce is a remnant of older divorce laws and is rarely the result of a modern divorce proceeding although divorce lawyers often request a divorce et mensa et thoro for strategic purposes. It is most commonly seen in divorce suits claiming cruelty, desertion or abandonment. Further explanation of this device would bore most readers to tears.
The “basic” divorce, if there is such a thing, is a simple concept. Complexity arises from the issues that must be resolved before a court may decree a final divorce. An overview of the general process of divorce is provided in the next section. Please be advised that some technical steps have been omitted from the following chart for the sake of simplicity.
If you were recently served with a Complaint for divorce, you are strongly advised to arrange a consultation with a divorce attorney within no more than 7 days after the date on which you were served. When you call to arrange a divorce consultation, be sure to tell the attorney or staff member that you were recently served with a Complaint.
If you are served with a “Complaint” for divorce then you must file “pleadings” responding to the Complaint within the next twenty-one (21) days. Pleadings may include an “Answer” or technical challenges such as a “Demurrer” or “Motion to Dismiss”. If you file no responsive pleadings, then you risk being in “default”. If you are in default then the allegations in the Complaint may be taken as true (subject to corroboration, which is beyond this article) and you may be deemed to have waived substantial rights you otherwise would have.
There are circumstances when a responsive pleading may not be necessary. However, you should only waive filing of responsive pleadings after being advised to do so by a divorce attorney. It is always best to err on the side of caution when dealing with law and procedure.
Interrogatories and requests for production of documents are discovery devices used in the divorce process. Interrogatories are a set of questions that a spouse must respond to under oath within a set time after they are served. Request for production of documents are a set of requests for documents that a spouse must produce copies of within a set time after the requests are served. Discovery is usually reserved for litigated cases although the results of discovery frequently lead to settlement of cases.
If you were served with interrogatories and request for production of documents at the same time as when you were served with the complaint for divorce then you have 28 days to respond with your answers to those discovery requests. If you were served with the discovery requests after you are served with the complaint for divorce, then you have 21 days to respond to the discovery.
If you are being served with discovery in your divorce proceeding, then you need to consult with an experienced divorce attorney immediately.
Contrary to popular belief, divorce does not require litigation. Spouses frequently divorce without ever stepping into a courtroom.
If you enter a “settlement agreement” resolving all issues of the issues the court would otherwise decide then obtaining the final decree of divorce becomes a matter of technical paper-pushing. Settlement is the most cost-effective way to obtain a divorce and most divorce suits are candidates for reasonable settlement. When a divorce is resolved by settlement agreement it is referred to as an “uncontested divorce”.
The alternative to an uncontested divorce is a “contested divorce”. In a contested divorce, the court resolves matters that the parties cannot work out among themselves. Any matters settled prior to trial are set forth in a “partial” settlement agreement. A partial settlement agreement narrows the issues presented to the judge and helps to control the costs of litigation. Divorce litigation is expensive and should only be undertaken for issues that truly merit it.
There are tools specifically developed to help parties settle legal disputes. Lawyers refer to them as “Alternative Dispute Resolution”. Attorneys are expected to talk to clients about ADR and to explore whether any such options may work to resolve their legal dispute. This topic is treated elsewhere on our site.
There are issues must be resolved and issues that may need to be resolved before a divorce can be granted. The issues that must be resolved include the division of marital property and spousal support. Resolve does not mean that the parties have a very specific agreement or claim that property and support have been settled. Spouses may waive their right to have property divided or spousal support decided by the court.
They may do this by agreement or by simply filing for divorce without requesting that the court divide property or set support. In either case a conscious decision must be made. It is possible for parties to unintentionally waive their rights to equitable distribution and spousal support, which is why a divorce attorney is a valuable addition to your team if there is any possibility that these issues may be litigated or need to be weighed.
The issues that may be resolved include child custody, visitation, and support. Where there are minor children then custody, visitation, and child support are usually issues that must be settled or decided before the final decree of divorce is entered. However, just like division of property and spousal support, is not required for a court to address these issues before granting a divorce.
Division of marital property in a divorce is technically referred to as equitable distribution. If spouses cannot agree on the division of marital property in a court divides the property for them in the equitable distribution process that takes place as a part of divorce litigation. A thorough discussion of equitable distribution in Virginia is here.
Spousal support is also sometimes referred to as alimony or maintenance and support for the spouse. Once again, if the parties to a divorce cannot agree on terms for spousal support then this issue must be resolved by a court as part of the divorce litigation. A thorough discussion of spousal support in Virginia is here.
Here are key statutes regarding issues in a divorce, which will be discussed in more detail in other sections:
- Maintenance and support of spouses (See Virginia Code § 20-107.1)
- Custody and support of children (See Virginia Code § 20-107.2)
- Property and debts of the parties (See Virginia Code § 20-107.3)
- Affirmation, ratification, and incorporation of an agreement entered by the parties(See § 20-109.1).
- This where we have to talk more like lawyers to explain what is meant.
To begin with, divorces are handled in the circuit courts in Virginia. For a circuit court to have jurisdiction over spouses for a divorce certain requirements must be met. These are jurisdictional and venue requirements.
Venue is straightforward. The preferred venue for a divorce action is in the jurisdiction of the Circuit Court where the husband and wife last to live together or where the defendant spouse lives.
See the “venue” statute Virginia Code § 8.01-261(19)
If you would like to find the appropriate “venue” for your divorce, here is a link to a map of Virginia’s judicial circuits and districts.
The defendant spouse may object to venue within 21 days after being served with the complaint for divorce usually. If no objection is filed within this time the objection to venue is deemed waived.
Jurisdictional requirements and grounds for divorce:
First, when a divorce is filed, at least one spouse must have lived in Virginia for at least the preceding six months. In legalese, this are the residence and domicile requirements, which mean that the person must have had a permanent home in Virginia and intended to reside there permanently.
Second, the circuit court must have in rem or personal jurisdiction. To avoid getting too technical, it is sufficient to say that personal jurisdiction over both parties is preferred and usually is possible because both parties live in Virginia.
Personal jurisdiction is usually established by serving the defendant spouse with the complaint for divorce while he or she is in Virginia. This involves a sheriff or private process server physically delivering the complaint for divorce to the defendant spouse. There are special rules governing how the complaint for divorce delivered but those are beyond this general discussion of divorce. Where a spouse lives outside of Virginia then additional special rules apply.
Finally, and there must be established grounds for divorce. Grounds for divorce refers to the basis on which the divorce is requested to be granted. Grounds for divorce are frequently divided into fault-based grounds and no-fault based grounds. The most common no-fault ground for divorce is the parties having lived separate and apart, intending to remain permanently separate and apart, for greater than one year.
If the spouses have lived separate and apart for over six months and have no minor children AND have entered an agreement settling all property and spousal support issues, then they are eligible for a no-fault divorce at the end of the six-month period as opposed to waiting for a one-year period of separation to be completed.
Commonly asserted grounds for a fault-based divorce include adultery, desertion, cruelty, and abandonment.
Grounds for divorce must be specifically alleged in the complaint for divorce, especially when pleading a fault-based ground for divorce. This means that is not enough to say that a spouse was cruel or committed adultery or abandoned the marriage. The dates times and a description of the events that serve as grounds for divorce must be set forth with specificity so the defendant spouse is fairly informed of the allegations against him or her. So if you plan on seeking a divorce on fault-based grounds collect dates, times, and as much information as possible for you to discuss with your divorce attorney at the initial consultation.
Another important point to be wary of is that adultery must be proven by clear and convincing evidence. This is a higher standard of proof than normally applies in civil proceedings. It is not quite as high as the beyond a reasonable doubt standard applied in criminal proceedings. However, it is not as easy a burden of proof to meet as many people believe. In cases of adultery, the requirement for clear and specific allegations is usually emphasized when defenses to the charge are raised by the defending spouse.
Grounds for divorce may be discussed more thoroughly in another section
This is a frequently asked question. The short answer is there is no legal separation in Virginia but there is a separation requirement that must be satisfied before a divorce is granted on no-fault grounds. This is the one-year separation, or six-month alternative, mentioned as a ground for divorce. There is no requirement that the parties file with any court to establish their separation prior to filing for divorce.
After a divorce is filed in the Circuit Court, it is not uncommon for one of the parties to seek temporary support or other relief before the final decree of divorce is entered. The circuit court’s authority to grant temporary relief is set by statute. The section of the Virginia code that deals with pendente lite relief is 20-103.
Virginia Code 20-103 authorizes a court to enter orders to accomplish the following:
- to compel a spouse to pay spousal support including to provide health care coverage
- to order a party to pay debts
- to provide funds for a spouse to obtain an attorney or pay for expert witnesses
- to prevent either spouse from opposing restraints on the personal liberties of the other spouse
- to provide for child custody and visitation and support and health healthcare coverage for the children
- to grant to a spouse exclusive use and possession of the home while the divorce is pending
- to preserve the estate or assets of the spouses to prevent dissipation or waste of marital assets while the divorce is pending
- to compel either spouse to give security to abide by the court’s order
- to require a spouse to maintain any current life insurance policies or life insurance policy beneficiaries including the parties’ children and to allocate the costs of any premiums for such policies
the court may also exclude a spouse’s family or household member for many jointly owned residence if it is shown that the requesting spouse has a regional apprehension of being physically harmed by person.
When child custody visitation or child support is at issue in a divorce and the wall requires that the parties attend an educational seminar program that the court has approved that relates to the effects of separation and divorce on minor children, parenting responsibilities, alternative dispute resolution, and the financial responsibility of the parties. The maximum fee for such a program is $50. Anything a spouse says during one of these courses is confidential unless he or she admits a crime or child abuse or neglect.