A COMPLETE OVERVIEW OF DIVORCE IN VIRGINIAc24bk2021-09-24T19:05:06+00:00
In Virginia, there are two types of divorce. One type is divorce is from bed and board or a limited or qualified divorce, also known as a mensa et thoro. The other is an absolute divorce from the bonds of matrimony, referred to as avinculo matrimonii. When a court grants a divorce from bed and board, the spouses will be considered legally separated but they will not be able to remarry other people. Some property claims may not be terminated in a divorce from bed and board. In most cases, there is little advantage in filing for divorce from bed and board. If a party wants to convert the divorce from bed and board into a permanent divorce, they may petition the Court to do so after a year following the date of separation. In absolute divorce or a vinculo matrimonii divorces, the marriage is terminated. No further marital rights or obligations remain and the parties may remarry.
Although issues like spousal support, custody, child support, and equitable distribution of property can be resolved from a divorce from bed and board, you cannot remarry unless you obtain a divorce from the bonds of matrimony.
WHO CAN FILE FOR DIVORCE IN VIRGINIA?
You or your spouse must be a resident and bonafide domiciliary in Virginia for at least six months before the divorce is filed. Domiciliary means that you intend to remain in Virginia indefinitely.
WHERE CAN YOU FILE FOR DIVORCE IN VIRGINIA?
Where a divorce can be filed is referred to as venue. A divorce action can be filed in any Circuit Court in Virginia, but if a party objects, the Court will look to the statutory preferences for different venues for filing for divorce. First preference is the county or city in which you and your spouse last lived together. Next preference is the Circuit Court where the Defendant spouse lives or resides. Third option is the Circuit Court where you reside.
WHEN CAN YOU FILE FOR DIVORCE IN VIRGINIA?
In the Commonwealth of Virginia, you will need to have a basis for divorce in order to be able to petition for one. If you are seeking a divorce, you will need to prove these grounds to the court.
A divorce from bed and board will require one of the following grounds: The willful abandonment or desertion from the other party; or Cruelty or reasonable apprehension of injury.
A divorce from the bonds of matrimony will require one of the following: The couple must be living separately for at least one year or six (6) months with no minor children and you have both agreed on a Property Settlement Agreement; Buggery, sodomy, or adultery occurred; There was a felony conviction; There was a willful abandonment or desertion after a year; or There was an unreasonable apprehension of bodily harm after a year from the date of the cruel acts.
If you are filing on no fault grounds you can file for divorce after you have been separated for six months provided you don’t have minor children and you have a signed settlement agreement. If you have minor children, you will have to wait until you have been separated for one year regardless of whether you have a signed settlement agreement or not. Virginia does recognize that couples can be separated and living under the same roof so long as certain conditions can be established.
If you file based on fault grounds for a divorce a vinculo matrimonii, you may file immediately in cases of adultery or if your spouse is convicted of a felony crime and sentenced to confinement for more than one year.
Filing based on other fault grounds including desertion, cruelty, or constructive desertion will still require waiting a year unless a divorce, mensa et thoro is sought. If a party files before a year has elapsed and fault grounds are not proven, it still may be possible to ask the court to grant you the divorce a vinculo matrimonii after the one year period has been satisfied.
WHAT IS CONSIDERED MARITAL VERSUS SEPARATE PROPERTY?
At a basic level, any assets or debts acquired from the date of marriage to the date of separation regardless of how they are titled are considered marital assets or debts. Anything acquired before or after the separation would be considered separate property unless transmuted (changed) into marital property. In the Commonwealth of Virginia, equitable distribution is when assets, debts, and property are divided. Frequently, parties may reach a mutual consensus about the distribution of some or all of their property. When the parties cannot reach an agreement, the court will be the deciding factor based upon the various factors found in Va. Code § 20-107.3.
WILL YOU BE ABLE TO OBTAIN ALIMONY OR WILL YOU NEED TO PROVIDE ALIMONY AFTER A DIVORCE?
In Virginia, spousal support can awarded as pendente lite, meaning, as the divorce process continues on a temporary basis. It can also be provided permanently.
When it comes to spousal support pendente lite, the courts will consider each party’s needs and the payor’s ability to pay, and household income. In Virginia, the court now uses presumptive pendente lite formulas to determine the amount of spousal support payments.
WHAT ARE THE BASIC STEPS FOR FILING FOR DIVORCE?
The plaintiff will file for the complaint for divorce when he/she has met the statutory requirements for doing so. Then, the complaint needs to be served on the defendant unless the defendant signs an acceptance and/or waiver of service. If the defendant did not sign a waiver of service, the defendant will usually file an answer with the court. If the parties have not reached an agreement and signed a Settlement Agreement, the court can set the case for trial to determine all the issues arising out of the case. The trial dates may not be for many months after the initial filing of the complaint. However, if a Settlement Agreement has been signed, the Final Order of Divorce and affidavits (from the plaintiff) can be submitted to the court for entry often without any appearance by either party. For more information read about how to file for divorce in Virginia on our blog.
HOW MUCH DOES A DIVORCE COST IN VIRGINIA?
It is difficult to predict how much a divorce will cost you. The costs vary widely depending on if you are able to settle your case, go to mediation, or have to go to trial. It is always going to be less costly to settle your case amicably when you can rather than spend the time, stress, and expense going to trial.
WHAT IS THE DURATION OF THE DIVORCE PROCESS IN VIRGINIA?
The timeline of the process will vary depending on the complexity of the case and the number of resolved issues between the parties.
For the most part, parties can expect a streamlined process when they have already been living separately for over a year and have been able to resolve the issues arising out of their marriage through a Settlement Agreement. In many cases, it can be easier to reach a divorce finalization when the parties have been separated for over six months and do not have any underage children. Once the paperwork for divorce has been completed, the average time for the divorce to finalize is a month to up to three months.
In contested divorce cases, additional processes and longer timing should be expected. Without a negotiated settlement, parties should expect that costs will be increased exponentially because many more steps will have to be taken to prepare for trial. It will be necessary for the attorneys on either side to gather or exchange information concerning child custody, visitation, or the marital assets and debts and argue motions as needed to prepare for trial. For the contested issues that are not resolved by the spouses, the judge makes a final determination at or after trial.
DIVORCE LAWYERS IN VIRGINIA
At NOVA Legal Professionals, our Virginia divorce attorneys located in Fairfax and Manassas have extensive experience presenting creative solutions to settle your case as quickly and as cost-effectively as possible. We will help you determine how and when to file. We will help you figure out the pros and cons with the approach that you seek to take. We will come up with a strategy that best fits your goals with how to move forward when you are ready. We will put you and your children’s interests first and foremost. Read more about how we have helped our clients here.
If you want to speak with one of our attorneys to discuss your case, reach out to us at either of our offices in Manassas, Prince William County, and Fairfax, Fairfax County locations to schedule.