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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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