Going through a divorce, for most people, can be a difficult time. It is emotionally draining and can also be a financial burden. The length of the marriage, the amount of shared property and assets, the reasons for the divorce, and whether there are children adds to the complexity of the matter. Every divorce is unique. While it is possible to file for divorce without an attorney, depending on the circumstances of the divorce, hiring an experienced family law attorney can have benefits. An experienced family law attorney in Virginia can help ease much of the strain of a divorce, by ensuring that you receive fair treatment, avoid future conflicts, and that the divorce is granted in the most timely manner possible. Below is an introduction to some of the laws in Virginia related to divorce.
Virginia, like most states including Maryland, follows equitable distribution laws that divide property and assets acquired during the marriage in a fair, but not necessarily 50/50 split. Factors like future earning potential and how much a spouse contributed to the marital property are all considered. This is in contrast to the relatively few, and mostly western states, who follow the “community property” laws of distributing assets, where property typically is split equally.
In order to get divorced in the Commonwealth of Virginia, one of the parties must have resided in Virginia for at least six months before filing for divorce. There are two types of divorce: divorce a vinculo matrimonii and divorce a mensa et thoro. A divorce a vinculo matrimonii is also known as an absolute or total divorce, which dissolves the marriage, distributes the marital property and debts, and releases the parties from any matrimonial obligations. This is the most common type of divorce, but in certain instances, requires a waiting period before it can be finalized. A divorce a mensa et thoro is more like a legal separation where the spouses are not legally obligated to live together, but their marriage has not been dissolved, and neither spouse can remarry when there is a divorce a mensa et thoro. However, there is no required waiting period for this type of divorce.
Certain “fault” grounds for divorce include willful desertion or abandonment, cruelty, adultery, and when one spouse is convicted of a felony. These grounds allow for an absolute divorce without any required waiting period. A “no fault” ground for divorce also exists under Virginia law and allows for a divorce when the parties have lived separately and apart without any cohabitation. However, if the parties have children, there is a one-year waiting period from when the parties separated before they can file for an absolute divorce under this ground. If the parties have entered into a property settlement or a separation agreement and there are no minor children, this waiting period is reduced from one year to six months.
Will you be eligible for spousal support (a/k/a alimony)? When it comes to spousal support Virginia law grants the court discretion to order a spouse to pay for the maintenance and support of the petitioning spouse, which can include providing health care coverage, paying any debts, providing for any children, etc. The court when determining whether to award support and maintenance to a spouse can consider multiple factors including whether a spouse contributed to the dissolution of the marriage, i.e. committing adultery. In determining how much and how long support should be awarded the court will consider a wide range of factors including: existing obligations, the needs and financial resources of the parties, the standard of living established during the marriage, duration of the marriage, the age and condition of the parties, contributions (both monetary and nonmonetary) of each party to the well-being of the family, earning capacity and education and training of the parties, and extent to which either party contributed to the education, training, a career position of the other party
Dividing property and marital assets is often one of the most complicated and sensitive parts of a divorce. While the parties can agree how they want to divide property and assets, the court can also play a role. For instance, either party can request the court to determine the ownership and value of all property and shall consider which is separate property, which is marital property, and which is part separate and part marital property. This can get tricky.
If you or your spouse is in the military, that adds another layer of complication. You can read about military divorce here: http://www.patriotslawgroup.com/military-divorces-and-service-related-disability-benefits/.
Getting divorced in Virginia requires an understanding of the law, filing the correct paperwork (like a financial statement) in the correct court, filing a complaint or an answer to a complaint, properly serving the other party, appearing in court, and more. It can be an overwhelming process. When you decide that a divorce is the next step in your life, seeking an initial consultation with a divorce attorney can be a good first step in deciding how you want to proceed.