Virginia Divorce Laws

If you're considering filing for divorce in Virginia, you may feel nervous and afraid. The divorce process can be scary and intimidating. This is why it's a good idea to understand Virginia's divorce laws.

Virginia's divorce statutes govern how married couples can get divorced. At times, these statutes are difficult to interpret. This is one of the reasons people hire a Virginia divorce lawyer to help with their case.

Here, we'll summarize the divorce laws in Virginia. We'll also discuss how the Virginia divorce process handles legal issues such as alimony, child custody, and division of property. Below, you'll also find a chart with a breakdown of the divorce laws in Virginia.

Legal Requirements for Divorce in Virginia

Like most states, Virginia has residency requirements you must meet before filing your divorce papers. According to Virginia law, you or your spouse must live in-state for at least six months before filing for divorce.

There is no mandatory waiting period before filing a fault-based divorce. You can file your divorce complaint immediately if you cite specific fault-based grounds for divorce. Your divorce attorney must submit evidence proving your spouse engaged in the alleged marital misconduct.

No-Fault Divorce Laws

Like all other states, Virginia has amended its divorce law to include a no-fault divorce. Filing for a no-fault divorce means you don't have to prove your spouse did anything wrong in your marriage.

If you and your spouse want to file a no-fault divorce and you have minor children, Virginia requires that you live separately from each other for at least one year before filing. If a couple has no children and has entered into a separation agreement, they can file for divorce after just six months of living separate and apart. Unlike other states, Virginia doesn't have a no-fault divorce based on incompatibility or irreconcilable differences.

Although the family law courts don't require you to allege fault under this type of divorce, fault may still be an issue of spousal support (alimony) or division of marital property.

Grounds for Divorce in Virginia

Any couple that meets the separation requirements discussed above can file a no-fault divorce in Virginia. In all other cases, you must show that your spouse engaged in egregious behavior in a fault-based divorce.

Virginia law recognizes the following grounds for divorce from the bonds of matrimony:

• Living separate and apart without cohabitation or interruption for one year or six months if there are no children and under a separation agreement (no-fault divorce)
• Adultery; sodomy or buggery with a person outside the marriage
• Felony conviction after the marriage that results in confinement for more than one year where cohabitation was not resumed
• Cruelty, causing reasonable apprehension of bodily hurt, or willful desertion or abandonment. In these cases, the court can issue a divorce decree for an innocent party one year after the act.

You should consider filing a no-fault divorce unless you can prove your spouse engaged in specific misconduct. Although there is no required separation period in some fault-based cases, the circuit courts may take longer to hear and decide a divorce case based on fault.

Uncontested Divorce vs. Contested Divorce in Virginia

There are two types of divorce in Virginia: uncontested and contested. In an uncontested divorce, the parties agree to the divorce terms. They have signed a settlement agreement and are ready to proceed with the divorce.

With a contested hearing, the parties disagree on important divorce terms, including:

• Alimony/spousal support
• Child custody
• Child support
• Division of property
• Marital assets vs. separate property

When you file your divorce complaint, you must also request service of process. This ensures that your spouse is on notice that a divorce case is before the court. Your spouse will have 21 days to answer. After completion of service, the court will schedule an initial hearing. It will also look for certain required affidavits from each side on financial information and children's issues. In uncontested divorce cases, a defendant's spouse often files a waiver of service.

In an uncontested divorce, the initial hearing may be the final. This is most likely to happen when the couple has signed a separation agreement and parenting plan that addresses all the issues of the divorce. The court may review the parties' agreement and approve a final judgment that will become an enforceable court order.

In a contested case, the initial hearing helps the parties narrow the issues and set future hearing dates. The court may issue temporary orders related to financial support, children's issues, and other matters. It may also refer the parties to divorce mediation to help move them toward a settlement. Between the initial hearing and the final hearing, your divorce lawyer will try to negotiate a settlement with your spouse's attorney.

Your case will go to trial if you can't agree on a settlement. At a trial, each side calls witnesses and presents evidence. The judge will decide these issues. The judge will include their final decisions in the divorce decree. Contested trials will go on the court's docket. You may wait more months for the court to file the final decree.

In child custody determinations, the judge will use the best interests of the child standard. It may award joint legal custody or sole legal custody to just one party. Unless there is evidence of safety concerns, it will issue parenting-time orders that will allow the child to have frequent contact with both parents. Any history of domestic violence or child abuse will get special attention.

In cases where the court names one party as the custodial parent, it will likely order the noncustodial parent to pay child support. The judge will refer to the Virginia child support guidelines for child support. Even in cases where the parties have joint custody, the court may determine it is in the child's best interest for the higher-earning parent to pay child support to the lower-earning parent.

Although alimony is not guaranteed in any case, the court will review factors such as the length of the marriage and the parties' roles in the household. The court will determine whether the lower-earning spouse deserves financial support from the higher-earning spouse. By law, any remarriage by the receiving party will end an alimony order.

In Virginia, the court will divide property using equitable distribution. The court does not divide marital property 50/50. Instead, the court relies on fairness and equity when determining property division.

Legal Separation and Annulment Actions

Virginia law also allows married couples to end a marriage by annulment and to live separate and apart under court order.

In an annulment, the court must find that the marriage was invalid based on some deficiency, fraud, or coercion at its outset. This can happen when a person marries a second spouse without divorcing the first spouse.

Whereas Virginia does not have a specific action for legal separation, it does have an action called a divorce from bed and board. This action requires a party to make a fault-based claim of cruelty, apprehension of bodily harm, or desertion. Upon filing, the party can seek court orders legally separating the parties and their assets and debts from the marriage. Court orders can also address support and child custody.

As with a traditional legal separation, the marriage stays in place for health care and other benefits. But, the parties can't remarry under such an action. For some couples, the divorce from bed and board sets the table for an absolute divorce at a later date.

Virginia Divorce Laws at a Glance

The provisions of Virginia's divorce laws are in the following chart.

Relevant Virginia divorce laws

Note: State laws are always subject to change through the passage of new legislation, higher court rulings, ballot initiatives, and other means. While we strive to provide the most current information, please consult an attorney or conduct your own legal research to verify the status of any state laws you are reviewing.

Get Legal Help With Your Divorce in Virginia

A divorce proceeding can be difficult legally and emotionally. You may find that seeking legal advice from a Virginia divorce attorney can help. This is especially true if your spouse has a divorce lawyer.

If you're thinking about getting divorced or are in the middle of the divorce process, consider speaking with a skilled divorce attorney in Virginia. They can guide you through the process and help protect your interests.