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Frequently Asked Questions Regarding
Divorce
1. What Types of Divorce Are Recognized in
Virginia?
A married individual can seek to obtain one of two types of divorce
in Virginia: (a) Divorce from bed and board or (b) Divorce from
the bond of matrimony.
A divorce from bed and board is a partial or qualified divorce under
which a husband and wife are legally separated from each other but
are not permitted to remarry. A divorce from bed and board can only
be awarded to a plaintiff when the defendant has been "cruel"
to the plaintiff or has "deserted" the plaintiff (as those
terms are defined under the law). Thus, a "no-fault" bed
and board divorce does not exist.
A divorce from the bond of matrimony is a complete and absolute
divorce. Any person granted a divorce from bed and board may ask
the court to "merge" the decree into a divorce from the
bond of matrimony after at least one year has passed from the date
the parties originally separated.
In either case, the law requires that "grounds" (valid
reasons for divorce prescribed by law) for divorce exist and be
proven to the Court even if the husband and wife are in complete
agreement.
2. What are the Grounds for a Divorce From
Bed and Board?
Willful Desertion
or Abandonment. Under this ground, the plaintiff must show both
the actual breaking off of matrimonial cohabitation and the intent
to desert by the defendant. A mere separation by mutual consent
will not be considered desertion by either spouse. Further, if one
spouse leaves because the other has committed acts that legally
amount to cruelty, then the spouse who leaves is not guilty of desertion.
In fact, the spouse who leaves may be awarded a divorce on the ground
of cruelty or constructive desertion.
If desertion grounds exist, the plaintiff may file a suit for divorce
from bed and board immediately after the separation. And if the
desertion continues for more than one year from the date the parties
originally separated, then the desertion is sufficient to constitute
a ground for divorce from the bond of matrimony.
Cruelty and
Reasonable Apprehension of Bodily Harm. Acts that tend to cause
bodily harm and render the spouses' living together unsafe may constitute
sufficient grounds. Mental cruelty alone is not normally a ground
for divorce in Virginia, except that if the conduct is such that
it affects and endangers the mental or physical health of the divorce-seeking
spouse, it may be sufficient to establish grounds for divorce.
If cruelty grounds exist, the plaintiff can file a suit for divorce
immediately after the parties separate. After one year has elapsed
from the time the act(s) of cruelty were committed, grounds will
exist for a divorce from the bond of matrimony.
3. What are the Grounds for a Divorce From
the Bond of Matrimony?
Separation
(No-Fault) Divorce. The plaintiff my obtain a "no fault"
divorce from the bond of matrimony upon a showing that for more
than one year the husband and wife both intended to and have continuously
lived separate and apart without any cohabitation. If the husband
and wife have entered into a Property Settlement or Separation Agreement
and there are no minor children, the time period is reduced from
one year to six months.
Although separation provides a "faultless" ground for
divorce, fault may still be an issue when spousal support (alimony)
is being sought. Further, a judge is free to award a divorce on
fault grounds even though "no fault" separation grounds
exist.
Adultery.
In order to prove adultery, the plaintiff must present evidence
that is specific, clear, and convincing. While there must be some
corroboration of the testimony of a spouse to prove adultery, "eyewitness"
testimony as to the adulterous acts is not required but may be conclusively
shown by some other evidence of the adultery. Sodomy and Buggery
(outside of the marriage) are also grounds for divorce.
Defenses to a charge of adultery include the following: (a) condonation
-- the innocent spouse has "condoned" or legally forgiven
the offending behavior by voluntarily cohabiting with the guilty
spouse after learning of the adultery; (b) connivance -- the innocent
spouse has actively encouraged or facilitated the other spouse in
committing the adultery; (c) recrimination -- the accusing spouse
is also guilty of one of the "fault" grounds for divorce;
(d) time -- if the adultery occurred more than five years before
bringing of the suit for divorce, then a divorce will not be granted
on these grounds.
Felony conviction.
If one of the spouses has been convicted of a felony, sentenced
to confinement for more than one year and is in fact confined, then
the other spouse has grounds for a divorce from the bond of matrimony
as long as he or she does not resume cohabitation with the guilty
spouse after knowledge of the confinement.
4. What is An Annulment?
An annulment is a legal decree declaring that a marriage is void.
Some of the same issues that are resolved in a divorce proceeding
can also be resolved in an annulment proceeding, such as child custody,
support and alimony. Annulments are granted only in limited circumstances
such as where one spouse entered into a marriage by reason of fraud,
duress or coercion. The Court will not grant an annulment merely
because the parties have been married for a short time, and annulments
are normally not granted for "religious" reasons.
5. Does Marriage Create Certain Property Rights?
The rights to property depend on whether the property is "marital
property" or "separate property."
"Marital property" consists of all jointly-titled property
as well as all other property, other than separate property, acquired
by either or both of the parties from the date of the marriage through
the time of the final separation. "Separate property"
is property owned by one party prior to the marriage, property acquired
after the parties have separated, inherited property and/or gifts
to one party from a third person. Where "marital property"
and "separate property" are mixed together or where the
value of "separate property" is increased through the
active efforts of either party during the marriage, then such property
may be classified as "marital property" or as "part
marital and part separate" property.
Virginia law provides for the "equitable" distribution
of the marital property between the parties at the conclusion of
the divorce. The Court may order monetary awards to one of the parties,
divide the property, order the property sold or transfer jointly-titled
marital property to one of the parties. In determining how to divide
the marital assets, the Court will consider various factors listed
in the Virginia equitable distribution statute, including the relative
monetary and non-monetary contributions of each of the parties to
the well being of the family and to the acquisition and care of
the marital property. In addition, pensions and retirement plans
that were accumulated during the course of the marriage are subject
to division by the Court as part of its equitable distribution award.
However, by statute, neither party can receive more than one-half
of the amount of the other party's pension or retirement plan that
accumulated during the marriage.
6. Does the Court Ever Award Spousal Support?
The Court may award spousal support to lessen the financial impact
of divorce upon the spouse who has less financial independence.
Although the Court will not award spousal support to punish a guilty
spouse, the Court may consider the cause of the separation as a
factor in determining whether or not to award spousal support. The
Court will look at factors such as the respective ages of the parties,
assets, and earning potential of the parties and the duration and
history of the marriage.
7. What are the Different Types of Custody
Arrangements in a Divorce?
The best interest of the child is the guiding standard for determining
who will receive custody of any minor children. There are three
major types of custody arrangements.
Joint legal
custody is where both parents have a role in making decisions
for the child. This can include an arrangement where both parents
retain joint responsibility for the care and decisions but the
child's primary residence is with one parent. It can also include
an arrangement where both parents share physical custody of the
child.
Sole legal custody is where one parent is ultimately responsible
for making decisions in the child's best interests and has the
responsibility for the care and control of the child.
Shared Custody refers to an arrangement whereby both parents share
child care responsibilities and decisions concerning the child.
Factors considered
by the court when awarding custody may include the age of the parent
and child, the physical and mental condition of each parent and
child, the relationship existing between each parent and each child,
the needs of the child, the role played by each parent in the upbringing
and caring for the child, the home where the child will live and
the child's wishes if the child is of sufficient age, intelligence,
and maturity to make such a decision.
Another important factor to the court in establishing most custody
arrangements is which parent will be the most likely to see to it
that the non-custodial parent remains a strong part of the child
or children's lives. Often the court will fashion living arrangements
such that the child, at least during the school year, will reside
primarily with one parent. The other parent will receive visitation
with the child. Visitation rights will normally be set by the court
if the parents cannot voluntarily agree upon satisfactory arrangements.
8. What are the Child Support Obligations?
Virginia has established child support guidelines contained in the
relevant sections of the Virginia Code (statutes enacted by the
Virginia General Assembly). The use of these state child support
guidelines provides an amount of child support that is presumed
to be correct, but the court may deviate from these guidelines in
appropriate circumstances. Normally the party receiving visitation
will be called upon to contribute to the support of the minor child.
This could be an obligation of the mother, the father, or both,
if a third person has custody of the child. The court is guided
by the needs of the child and the ability of the supporting parent
or parents to pay. The award is subject to change so long as the
obligation to support remains. The child support amount may be increased
or decreased if a material change occurs in the circumstances of
either or both of the parents or of the child. Non-custodial parents
who have their children for more than 90 days per year for visitation
have their child support calculated using a different formula that
is likely to make the support lower. The court may also require
a party to maintain an existing life insurance policy to provide
financial security for a child in the event that the parent obligated
to pay child support dies.
9. What is a Property Settlement Agreement?
This is a written agreement that is signed and sworn to by both
parties. It sets forth the rights, duties, and obligations of each
party arising out of their separation and divorce. The agreement
may include such items as division of property, spousal support,
attorney's fees, custody, and child support. This gives the parties
the option of reaching a voluntary agreement resolving their concerns
raised in the divorce.
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information contained in these web pages is not legal advice. The
information presented on these pages may not be applicable to your
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