General Virginia And Family Law FAQS
Each case is different. In Virginia, a party can be divorced on “no fault” grounds once separated for a period of six (6) months provided (s)he has entered into a property settlement agreement and does not have any minor children. If there are minor children, the couple must be separated for a period of one (1) year for a no fault divorce. Because of the required separation, it is sometimes beneficial to enter into a comprehensive Marital Settlement Agreement during the mandatory separation period to avoid the potential confusion, stress, and anxiety that may occur when going through the divorce process.
The short answer is “No.” However, under 20-149, reconciliation can void an agreement, and some agreement terms become binding and permanent if the parties do not specify otherwise. It is best to consult with an attorney prior to entering into an agreement to avoid any problems pre-separation agreements could cause.
The domestic relations laws in Virginia are complex and confusing. No divorce case is the same and your case is specific to your situation. You should know your rights, including what you might be entitled to, and what to expect from your facts and circumstances.
In order for the Commonwealth of Virginia to have jurisdiction to enter your divorce, you or your spouse must be domiciled in Virginia for at least six months prior to filing your divorce. Domicile can be a complex issue, and you should consult an attorney prior to filing to prevent your case from being filed in the wrong jurisdiction.
No; however, with rare exceptions, you cannot get divorced in Virginia unless all issues before the court, (support, property, custody issues, etc) have been resolved. This can be done via an agreement or by the Court. An agreement is one way to resolve the issues pending before the Court. Before signing anything pursuant to your divorce, it is best to consult an attorney to make sure your rights are protected.
No. Legal separation does not require an agreement. Separation is based on an the intent to be separated and the actual physical separation between the couple.
1. Residents of Virginia (Va. Code Section 20-97): One of the parties must have been an actual and bona fide resident and domiciliary of the Commonwealth of Virginia for at least six months prior to the filing of the action. This means that either you or your spouse must have lived in Virginia and had the intent to permanently remain here during the six months before the complaint for divorce was filed. There are also residency provisions that apply to members of the armed forces.
2. Other Requirements: To be divorced, you must plead:
- That you and your spouse were lawfully married
- That you and your spouse are at least 18 years old
- That there is no hope or possibility of reconciliation
The proper place of filing, or what is legally referred to as “venue,” in a divorce action is either:
- The jurisdiction in which the Defendant resides OR
- The jurisdiction in which you and your spouse last cohabited as husband and wife (Va. Code 8.01-261)
The proper court to file in is the Circuit Court of the county or city within one of the two locations above.
In Virginia, if you were lawfully married, then you may be granted a divorce on the following grounds pursuant to Section 20-91 of the Code of Virginia:
For a court to grant a divorce on the ground of adultery, it must be proved by clear and convincing evidence. (Watts v. Watts, 40 Va. App. 685 (2003)). This means that at a minimum, the spouse alleging adultery must provide evidence showing a date, place, and time during which the adulterous conduct occurred. However, even if a spouse does not have sufficient evidence to prove adultery by clear and convincing evidence, he or she can include the adultery as a factor that lead to the dissolution of the marriage for the court to consider.
2. Felony Conviction
A spouse may seek a divorce on the grounds that the other spouse was convicted of a felony during the marriage if the other spouse was sentenced to and served one year in jail/prison, and the couple did not live together after the other spouse was freed from confinement.
3. Cruelty, Bodily Harm, Desertion, or Abandonment
If a spouse is guilty of cruelty, reasonable apprehension of bodily harm, desertion of the other spouse, or abandonment of the other spouse, then the innocent spouse may seek a divorce after a period of one year from the date of the act. However, a defense to the grounds of desertion and abandonment is that the alleging spouse’s actions justified the action.
4. No Fault
If you do not wish to file for a divorce on one of the above grounds, or if none of the above grounds are present in your case, then you should consider filing a no-fault divorce based on the following:
- The husband and wife have continuously lived separate and apart for…
- One year if the divorce is contested and/or there are minor children born of the marriage
- Six months if the divorce is BOTH uncontested and there are no minor children born of the marriage
Whether a no fault divorce or fault-based divorce is right for you is a fact-specific question that varies for each person or couple. The benefit of a no-fault divorce is that you only need to prove that you and your spouse have lived separate and apart for the requisite time period. This kind of divorce may also end up being less contentious than a fault-based divorce because it does not involve a painful and often highly emotional fault ground (however, this is by no means true in all cases).
The benefit of a fault-based divorce is that you do not need to wait the period of time necessary for a no fault divorce filing. Also, pursuant to Va. Code Section 20-107.1, a spouse may be barred from receiving an award of spousal support if he or she is shown to have committed one of the fault-based divorce grounds. However, even if a fault-based divorce is granted, the spouse at fault may still receive spousal support if a “manifest injustice” would otherwise ensue.
Under Va. Code § 20-103, the Court can award certain things during the divorce suit before the final decree of divorce is entered. These awards are referred to as “pendente lite,” which means “with litigation pending” in Latin. The court can award the following pendente lite:
- Spousal support
- Child support
- Health insurance coverage, if available
- Exclusive use and possession of the home
- Payment of marital debts
- Preservation of the estate
- Freedom from personal liberty restraints by the other spouse
The Court will then make its final ruling as to divorce relief in the final hearing, which may or may not be the same as the pendente lite award(s).
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