Andy Patzig is a Virginia-licensed attorney. This article is provided as general information, not legal advice, and may not reflect the current laws in your state. It does not create an attorney-client relationship and is not a substitute for seeking legal counsel based on the facts of your circumstance. No reader should act based on this article without seeking legal advice from a lawyer licensed in their state.
If you or your spouse have decided to divorce in Virginia, you’re facing what’s likely one of the most difficult and emotionally taxing times of your life. Every state has its own laws and regulations about the divorce process, and if you can understand what to expect, it can ease some of the anxiety.
Below we address the most frequently asked questions about divorce in Virginia to help you better navigate this process.
What are the types of divorce in Virginia?
There are two legal options for divorce in Virginia:
- Divorce from bed and board (often referred to as a limited divorce)
- Divorce from the bond of matrimony (often referred to as an absolute divorce)
Knowing the differences between the two is critical when navigating the legal process of divorce.
A divorce from bed and board is essentially a legal separation. This type of divorce doesn’t dissolve the marriage but instead establishes a formal arrangement for two people who no longer live together. It allows couples to work out issues such as spousal support, child custody and visitation rights without fully ending the marriage. A divorce from bed and board also creates a court-ordered agreement that both parties must adhere to, which can provide some relief when navigating the emotional and financial implications of a divorce.
A divorce from the bond of matrimony, on the other hand, is the complete dissolution of a marriage. It resolves all issues pertaining to the marriage, including alimony, property division, child custody and visitation rights. Once a couple has been granted an absolute divorce, they are legally allowed to remarry.
What are the residency requirements for divorce in Virginia?
According to the state’s Code of Virginia, in order to file for a divorce in Virginia, either spouse must have been a resident of the state for at least six months prior to filing and should also currently live in the state.
What are the legal grounds for divorce in Virginia?
The grounds for divorce in Virginia depends on the type of divorce.
This type of divorce requires one spouse to prove that the other was at fault for the marriage ending. There are two types of fault-based divorces in Virginia:
- Actual fault is when one spouse can prove the other has committed adultery or cruelty, abandoned them or been convicted of a felony with at least one year in prison.
- Constructive desertion occurs when the spouse refuses to leave the marital home but has left the marriage or made the home unlivable for the other spouse.
This type of divorce doesn’t require evidence of wrongdoing. Instead, a couple can opt for a no-fault divorce if:
- They’ve been living separately for at least six months and have signed a property settlement agreement
- Or, if there are minor children or no property settlement agreement, they’ve been separated for at least one year without interruption
Can I get spousal support? What factors will a judge consider?
The Virginia Code establishes guidelines for courts to consider when determining an appropriate amount of spousal support (also called alimony) if it’s determined that a spouse needs support. In general, if the marriage lasted fewer than five years, spousal support won’t exceed the length of the marriage. If the marriage lasted more than five years, spousal support can be ordered for up to half the length of the marriage. This means that if your marriage lasted 10 years, you may be eligible for up to five years of spousal support.
Factors that a judge in Virginia considers when making a decision about alimony include:
- The age, health and financial resources of both parties
- The duration of the marriage and its impact on the earning capacity of either party
- Any type of marital misconduct that adversely affected the other spouse’s ability to earn income
- The standard of living during the marriage and how this would be affected if the court were to grant spousal support
- The contributions made by each party to the marriage, such as homemaking or childcare
- The debts and assets of each party, including retirement benefits
- Any physical or mental disability that either party may have that could prevent them from providing for themselves after the divorce
- The needs of any children from the marriage (the court may consider that the supporting spouse should contribute to these needs)
- Any other factors deemed relevant by the court
Ultimately, it’s up to the court to decide how much spousal support should be awarded in a divorce case. However, if the spouses can reach an agreement on spousal support, the court typically approves that agreement.
How is marital property divided in Virginia?
In Virginia, all marital property is subject to division by the court.
Marital property includes any assets and debts acquired by either spouse during the marriage. The court doesn’t take into account which spouse acquired the property, who holds title or whose name is on the title.
When dividing marital property, the court considers several factors, including:
- The length of the marriage
- Each spouse’s income and earning capacity
- The physical and mental health of each spouse
- Each spouse’s contribution to the acquisition of the marital property
- Any other factor deemed relevant by the court
The court aims to divide marital property equitably, meaning fairly but not necessarily equally. The court may award one spouse a larger portion of the marital property than the other. The court may also order that certain items of marital property, such as a family home, be sold and the proceeds be divided between the spouses.
How is child custody determined in Virginia?
When it comes to the division of parental rights and responsibilities in Virginia, the court’s main goal is to maintain a stable relationship between each parent and the child. The court makes its decision based on what’s in the best interest of the child.
In order to determine physical custody, the court considers several factors, including:
- The child’s age and development
- The health and well being of each parent
- The child’s preference
- The parents’ ability to provide for the child’s needs
- The parents’ capacity to cooperate with each other
- The impact of any abuse on the child or family
Generally, both parents are awarded joint legal custody, meaning they have equal authority in making decisions about their child’s welfare. However, if the court believes this isn’t in the best interest of the child, one parent may be awarded sole legal custody.
Additionally, the court may award one parent primary custody (meaning the child lives with that parent the majority of the time) and the other parent visitation rights.
How is child support determined in Virginia?
When determining child support, the court considers each parent’s ability to financially support the children. To do this, the court looks at a variety of factors such as each parent’s income, any available assets, the age of the children and any special needs the children have.
In cases where the parents agree on the amount of child support, the court may review and approve the agreement to ensure that it’s in the best interests of the child.
In cases where the parents are unable to reach their own agreement about the amount of child support, the Virginia Division of Child Support Enforcement provides guidelines to use. These guidelines look at the total combined income of both parents to establish the basic support amount. Additional adjustments can then be made depending on individual circumstances.
The court may also require one parent to pay for certain expenses such as health care, educational costs and daycare. The amount and type of these expenses are determined on a case-by-case basis by looking at both parents’ ability to pay as well as what’s in the best interests of the children.
Additionally, the court can order either parent to maintain health insurance for the children. If either parent has access to affordable coverage through their employer, they’ll likely be required to do so. If neither parent has access to health insurance through their employer, one or both will be responsible for obtaining coverage for their children.
How to file for divorce in Virginia
The process to file for divorce in Virginia follows these steps:
1. Determine eligibility
In order to be eligible, you must have been a resident of Virginia for at least six months prior to filing.
2. Gather necessary documents
To start the legal process of divorce, you must file a complaint for divorce in the circuit court.
The complaint should include information about your marriage, grounds for divorce and any other relevant details. To avoid any delays in the divorce process, carefully review the form and provide accurate and complete information. It’s important to be honest and thorough, as this form will provide the judge with important details about your case.
You may also need to provide:
- Proof of residency
- Proof of income
- Copies of any financial or legal documents related to your marriage
- Financial disclosures, such as pay stubs, bank statements and tax returns
- Evidence of any marital debts or assets (including deeds, titles and loan documents associated with the property)
- If there are children involved, a child support worksheet, which outlines the amount of child support to be paid by each party
You may need to provide additional documents if your case involves more complex issues, such as high assets or military service.
All of this can be complex, so you may wish to speak with an experienced attorney who can help guide you through the process and advise you on the exact paperwork you need to file.
3. File papers
Once all your documents are completed, file them with the circuit court in the city or county where either spouse lives. You also need to pay a filing fee, which varies depending on the type of divorce you’re pursuing and your city or county. Check with your local court system to learn what fees may apply to your particular case and if those fees can be waived.
Currently, if you’re filing for a divorce from bed and board, the filing fee is generally about $125, plus an additional $10 for every defendant listed in the complaint. If you are asking for alimony or spousal support, there’s an extra $25 filing fee.
If you’re filing for a divorce from the bond of matrimony, the current filing fee is around $175, plus an additional $10 for every defendant listed in the complaint. Just like a divorce from bed and board, if you’re asking for alimony or spousal support, there’s an additional filing fee of $25.
4. Serve papers
Once you file the papers, you’ll receive a case number and instructions on how to serve the papers on your spouse, who will be given an opportunity to respond. You must make sure your spouse receives the papers within 90 days of filing.
5. Reach a settlement agreement or attend court hearings
If you and your spouse can reach an agreement on the terms of your divorce, you can then file a settlement agreement with the court. However, if you’re unable to reach an agreement, the court will hold a hearing to determine the terms of the divorce.
At the hearing, both parties have the opportunity to present their side of the case before the judge rules on all issues related to the divorce, such as child custody, alimony and division of assets.
6. Finalize divorce
Once all hearings are complete, the judge issues a final divorce decree that outlines the terms of the divorce. After this is signed, the divorce is final and both parties can move forward with their lives.
How long will it take to get divorced in Virginia?
The timeline for getting a divorce in Virginia depends on the specific circumstances of your case. Depending on the complexity and any disputes between you and your spouse, the entire process can take anywhere from three months after your requisite separation period to longer than a year if there are complex issues.
If you and your spouse reach an agreement on the terms of the divorce, the process can be relatively quick. The court may only need to hold a single hearing to review and approve the settlement agreement and you may never even have to go to court.
However, if you’re unable to reach an agreement, the court may need to hold multiple hearings to address any disputes and determine the terms of the divorce. This can add several months to the process.
It can be helpful to consult an attorney to understand and navigate the specific timeline for your divorce.
How much does divorce cost in Virginia?
The amount that you pay for a divorce in Virginia depends on a variety of factors, including the length of your marriage, how complex your assets are and whether you and your spouse can agree on the terms of the divorce. Additionally, you may need to pay for the services of an attorney.
Generally speaking, a simple divorce can cost anywhere from a few hundred dollars to several thousand dollars. A more complicated divorce could cost tens of thousands of dollars.
It’s also important to remember that court costs (the fees you pay for the court to handle your case) aren’t included in the price of a divorce. In most cases, these range from $30 to $90. You may also need to pay other fees associated with filing paperwork and obtaining copies of documents.
Can we agree to a divorce settlement outside of court?
In the state of Virginia, couples may reach an agreement about the terms of their divorce outside of court. This can be a property settlement agreement or a mediated settlement, and it can be an effective way to resolve issues such as the division of assets and debts, alimony and child custody.
If you and your spouse can agree on all the relevant issues in your divorce, you can submit your agreement to the court for approval. If it meets all legal requirements and is deemed fair and reasonable to both parties, it can be approved without the need for a trial or hearing.
Mediated settlement agreements often require less time and expense than court proceedings, and they offer more privacy since they take place outside of the courtroom. Additionally, they grant the divorcing couple greater control over the decisions made because they’re the ones negotiating the agreement. Often these meetings are done with a retired judge who can help resolve the issues.
Before entering into a mediated settlement, discuss the situation with a qualified divorce attorney in Virginia. Your lawyer will aim to ensure that your rights are protected throughout the process and that all of the details of your agreement meet state requirements. They can also help you understand any potential consequences or implications of the agreement so you can make an informed decision about what’s best for you and your family.
When to speak to a divorce attorney
If you’re considering filing for divorce in Virginia, it’s important to understand the process and all of the legal requirements you’ll need to meet. Speaking to a divorce attorney who is knowledgeable about the laws in Virginia can help.
It can be helpful to consult a divorce attorney as soon as you consider getting a divorce—especially if there’s a history of domestic violence or if children are involved. An experienced divorce attorney can advise you on how to best proceed with your case, as well as provide resources and guidance throughout the entire process to ensure that your rights are protected and that your best interests are considered when decisions are made.