A guide to virginia divorce

Knowing what to expect and how to proceed is important when facing the prospect of divorce.

Divorce Procedures in Virginia

The first step in obtaining a divorce in the state of Virginia is to determine the type of and grounds for the divorce. Different grounds for divorce have different waiting periods, explained later. Lawyers usually encourage the parties to discuss property, support, and child custody (if applicable) during the waiting period. Legalizing these arrangements with a separation agreement can expedite the divorce once the waiting period is over, and, if there are no children, can reduce the waiting period.

After the waiting period has passed, the party seeking divorce will file a complaint in the circuit court where one or both spouses live. Couples must prove residency by showing that one or both of them lived in Virginia for the entire waiting period. Residency is usually proved by driver's licenses, leases, witness statements, and the like.

Once the papers are filed in the court, the spouse has twenty-one days to respond. Whether the spouse responds or not, the plaintiff must then appear with a corroborating witness before a Commissioner in Chancery, in a hearing scheduled by the Circuit Court's clerk. Your spouse may be at this hearing, but is not required to be there. The Commissioner then files a report with the court, usually after about 30 days. The plaintiff or his or her lawyer then mails the Final Decree to the Circuit Court, requesting that a judge sign it. Once the decree is signed, the divorce is final.

Types of Divorce

In Virginia, couples can enter into three types of divorce. The first, an annulment, voids the marriage completely. Annulments are rare in Virginia, and are granted when a marriage was entered into under fraudulent or non-legal circumstances, such as polygamy. Annulments are not granted for religious reasons or based on duration of the marriage.

What is referred to as a legal separation in some other states is called a limited divorce in Virginia. Couples granted a limited divorce live separately, with legal documentation to divide property, to provide custody and child support agreements for children, and to award spousal support if required. The parties cannot remarry, unless the limited divorce is converted into an absolute divorce.

Absolute divorce is a divorce from all bonds of matrimony. Persons granted complete divorces are free to remarry, and have legal documentation to determine division of assets, child custody and support, and spousal support.

Grounds for Divorce

Before filing for divorce in Virginia, the plaintiff must decide what reasons, known as grounds, entitle him or her to a divorce. Some grounds entitle parties to an absolute divorce, and others to a limited divorce. Some grounds entitle parties to either. It is possible to change grounds for divorce after the process has begun, and the court has the power to change either the grounds for divorce or the type of divorce.

Adultery is grounds for absolute divorce in Virginia. Unlike other grounds for divorce, no waiting period is necessary before divorce under grounds of adultery.The plaintiff must prove that adultery actually occurred. Possible defenses against a fault-based divorce on grounds of adultery include condonation, if the spouse forgave the adultery and reentered the marital relationship; connivance, in which the innocent spouse promoted the adultery; recrimination, if both spouses are guilty of adultery; and time barred, if more than five years pass between the adultery and the initiation of the divorce. Persons who have entered into a voluntary separation in order to obtain a no-fault divorce may still be charged with adultery.

Felony conviction is grounds for an absolute divorce in Virginia, providing that the guilty spouse has been incarcerated for more than one year. To obtain a divorce on grounds of a felony conviction, the innocent spouse must prove that the guilty spouse was convicted of a felony and has served one year of a prison sentence, and that cohabitation has not occurred after the conviction.

Desertion is grounds for a limited or absolute divorce. One spouse must leave the other without his or her consent, and there is a one-year waiting period for each offense. If the spouse comes back and lives in the home for any period of time, the waiting period must begin again. If one spouse is forced from the home due to an unsafe situation, such as violence, the spouse who leaves is not guilty of desertion. A spouse leaving an unsafe situation may charge the guilty spouse with constructive desertion, grounds for a fault-based divorce.

Cruelty is grounds for a limited or an absolute divorce. The cruelty must typically be physical and repetitive. Mental cruelty is not usually grounds for divorce, nor are isolated incidents of violence. There is a one-year waiting period for absolute divorce on grounds of cruelty, although limited divorce on these grounds may be granted immediately.

Voluntary separation is the only no-fault grounds for absolute divorce in Virginia. To obtain this type of divorce, the parties must enter into the separation with the intent to divorce, and must not cohabitate during the separation. There is a waiting period of one year, although childless couples with a court-approved separation agreement may reduce the waiting period to six months.

Child Custody and Child Support

The state of Virginia recognizes two types of child custody: physical custody and legal custody. Physical custody, where the child lives, is typically shared; the child or children live with one spouse, and have court-approved visitation with the other spouse. Courts determine which spouse can gain physical custody based on the age of the child, physical and mental health of the parents and child, and the relationship between the parents and child. More mature children may have their opinions heard when determining custody arrangements, but the final decision belongs to the court. Legal custody, or decision-making power, is shared by both parents, unless one parent can prove that the other is negligent or incapable of making good decisions for the child.

Child support is awarded to the custodial parent, based on income of both parties. The amount of child support is determined by the courts, and may change if either party has a significant change in financial stability. Child support may include a requirement that the non-custodial parent name the child as beneficiary of a life support policy or health insurance policy.

Divorce law is a complicated subject. Although Virginia law allows couples to represent themselves during divorce proceedings, it is wise to have legal counsel. Divorces are emotionally charged situations, and a third party who has experience with the nuances of the system will be able to ensure that the proper procedures are followed at the proper times, and protect his or her client's interests.

© High Speed Ventures 2011