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Virginia

How Divorce Works In Virginia

Virginia divorce cases are handled by the state’s circuit court system, as are all other Virginia family law matters. The state of Virginia has one very unusual divorce law: divorcing couples may choose either a limited divorce or an absolute divorce. When the circuit court issues a limited divorce decree, it operates a bit more like a separation agreement, as it is not permanent, does not permit remarriage, and does not terminate property claims (although it might include a property settlement agreement). When the circuit court grants an absolute divorce, it constitutes a final decree, as the divorce is permanent, permits remarriage, and terminates property claims.

Virginia divorce laws allow couples to either file for a fault divorce or a no fault divorce. In a fault divorce, one spouse will allege some wrongdoing on the part of the other spouse in the divorce complaint, whereas in a no fault divorce, one or both spouses will simply indicate that they would like to dissolve the marriage through no fault of either party.

If one spouse would like to allege fault on the part of the other, they can select from four possible fault options listed by Virginia law. Those options are: adultery, sodomy, or buggery, committed by either spouse; conviction of a felony; willful desertion for a period of at least one year; and cruelty which causes the other spouse to fear bodily harm. If one spouse does allege fault, they will be required to prove it in court, which makes for a much more complicated divorce case and much more time-consuming divorce proceedings.

Divorcing couples may also choose between a contested divorce and an uncontested divorce in Virginia. In a contested divorce, each spouse must hire a Virginia divorce lawyer in order to resolve divorce issues like child support, child custody, alimony, and the division of marital property. Sometimes this means leaving these decisions up to the court, but more often the parties are able to reach a marital settlement agreement before trial.

In an uncontested divorce case, the parties already agree on these issues at the time of filing for divorce (perhaps they even already have a formal separation agreement), so they are able to simply submit their agreement to the court for approval prior to issuing a final divorce decree. Uncontested divorce in Virginia does not usually necessitate the hiring of an uncontested divorce lawyer.

However, some people may prefer to find an uncontested divorce attorney if they would like some minor legal advice or help navigating the uncontested divorce process and the many divorce forms. Online divorce is also an option in this case.

In a contested or uncontested divorce in Virginia, the spouse filing the initial divorce papers is called the plaintiff, and the spouse filing the response is known as the defendant. In cases of no fault divorce, there is not usually any benefit to being the plaintiff or the defendant; they are simply responsible for slightly different paperwork -- namely, the complaint and the response.

A divorce proceeding begins when the plaintiff files a complaint with the county clerk’s office. The defendant is then responsible for filing a response with the clerk within 21 days, or they risk having a default judgement issued against them.

Virginia Grounds for Divorce

In Virginia, there are five possible grounds for divorce: adultery, sodomy, or buggery, committed by either spouse; conviction of a felony; willful desertion for a period of at least one year; cruelty which causes the other spouse to fear bodily harm; and separation for a period of at least one year (or six months if there are no minor children of the marriage). The first four are considered fault grounds, while the latter is no fault. If a spouse does allege fault on the part of the other, they will be required to prove it in court. Proving fault can have a very broad impact in the outcome of a Virginia divorce, including the division of property, alimony, and even in rare cases child custody.

Virginia is an Equitable Distribution State

In a Virginia divorce, property is divided in accordance to the doctrine of equitable distribution. This means that the court begins with a presumption of a 50/50 split, but then makes a decision based on fairness. The court will look at factors such as who was the primary earner in the marriage, the health and education of both parties, and any misconduct that occurred during the marriage which constitutes one of the four possible fault grounds (adultery, sodomy, or buggery; conviction of a felony; desertion; and cruelty which causes the other spouse to fear bodily harm).

These decisions are ultimately left up to the discretion of the court, making them highly variable, but an experienced divorce attorney will usually have good insight to predict how things might go. Virginia courts are also of course willing to abide by the parties’ wishes or a preexisting separation agreement.

How Long it Takes to get Divorced in Virginia

  • For divorces on the basis of adultery, Virginia does not require any formal waiting period. However, couples getting divorce on the basis of desertion or cruelty must live apart for one year before a Virginia court is able to grant a divorce. The waiting period varies in divorces in which no fault is alleged: couples with minor children must first live apart for a full year before, but couples with no minor children must only wait six months. There is no way to avoid an applicable waiting period, but within those confines, a good attorney will be able to prioritize efficiency in negotiating a settlement if that is important to you.

Virginia Child Support

Virginia calculates child support based on the income of both parents, certain expenses associated with raising the child[ren] (like health insurance and work-related childcare, and how much time each parent has the child[ren] in their custody. Child support ends when the child reaches age 18 or, if the child remains in high school, reaches the age of 19.

Virginia Co-Parenting Plans

For couples with kids, one of the most important aspects of negotiating divorce terms is developing a parenting plan. This plan will outline whether custody and parenting time will be shared equally or one parent will be the child’s primary caregiver. You can visit www.custodyexchange.com for examples of common co-parenting schedules.

Virginia Child Custody

There are two kinds of custody -- physical and legal. Physical custody deals with where the child is living and which parent is responsible for his or her day-to-day care. Legal custody deals with how important decisions are made for the child regarding topics like healthcare, religion, and education. Physical and legal custody do not have to be split up the same way; parents can choose an arrangement that works for their family, or else a judge will issue a custody order. Virginia courts make custody decisions on the basis of what is in the best interest of the child. Usually this means some form of shared custody, as maintaining a relationship with both parents is presumed to be in the child’s best interest.

Virginia Residency Requirements

In order to get divorced in Virginia, at least one spouse must have resided in the state for at least six months prior to filing the petition with the county clerk. Residency is usually proven by sworn affidavit.

Virginia Filing Fee

In order to get divorced in Virginia, you will owe the county clerk a filing fee. This fee is not uniform throughout the state; it varies by county and by the nature of the particular case. Typically, you can expect to pay between $100 and $250 in order to file your Virginia divorce forms.

Virginia Alimony

Alimony -- sometimes called spousal support or maintenance -- is money that the law requires one spouse to pay the other following the dissolution of their marriage. Alimony is usually paid on a monthly basis, and it is completely separate from child support. In Virginia, there is no absolute right to alimony. Instead, courts make decisions on a case-by-case basis. There is, however, a formula called the pendente lite spousal support calculation, which is sometimes employed by judges or divorcing couples who wish to negotiate their own alimony plan. The formula was originally intended for emergency situations before trial, but it is commonly used under other circumstances as well. Usually alimony orders in Virginia remain in effect for half the length of the marriage, but sometimes Virginia courts consider permanent alimony for marriages lasting over 20 years.

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Virginia Divorce & Coronavirus

Throughout Virginia, courts have experienced closures and limitations due to the COVID-19 virus. Currently, most Virginia courts have reopened subject to social distancing protocols, but many cases (especially non-essential or non-emergency cases) are still being heard remotely or delayed. Health and safety procedures vary by county, so visit your local court’s website for more information. You can also check the Virginia court website for COVID-19 updates. If you opt for an online divorce with It's Over Easy, your divorce will most likely be unaffected by COVID-19.