Beginner’s Guide to Virginia Divorce Laws
If you want to end your marriage in Virginia, there are several laws you need to know about before starting the divorce process.
- Assets and Debts
- Spousal Support and Child Support
- Custody and Visitation
- Divorce Process
- Other Divorce Issues
Assets and Debts
Marital Property and Division of Assets in Virginia
Virginia is an equitable distribution state and as such, the courts will attempt to divide assets in a fair and equitable way. This does not always mean that assets will be divided on a 50/50 basis.
Only marital assets are considered in a division of assets. Marital assets are those accumulated during the course of the marriage up until the day of separation. There are some exceptions, such as with inheritances and personal gifts, which may be considered separate property if certain conditions are met. The valuation of marital assets is placed on the day that an evidentiary hearing is held, or a divorce trial takes place.
The following factors are required to be considered in dividing marital property:
- The contributions, monetary and non-monetary, of each party to the well-being of the family
- The contributions, monetary and non-monetary, of each party in the acquisition and care and maintenance of such marital property of the parties
- The duration of the marriage
- The ages and physical and mental condition of the parties
- The circumstances and factors which contributed to the dissolution of the marriage, specifically including certain grounds of divorce
- How and when specific items of such marital property were acquired
- The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities
- The liquid or nonliquid character of all marital property
- The tax consequences of dividing marital property
- The use or expenditure of marital property by either of the parties for nonmarital separate purpose or the dissipation of such funds when such was done in anticipation of divorce or separation or after the last separation of the parties
- Such other factors as a court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award
Just as it is with assets in Virginia, debts must be classified as either marital, separate or a combination of both marital and separate so that proper equitable distribution can take place.
Marital debts are defined as debts that were incurred from the date of the marriage to the date of separation. Separate debts are defined as those acquired before the marriage took place or after the date of separation.
When it comes to splitting payment of the debt in a divorce, the debt will be split fairly but not necessarily 50/50. Courts may take into account who was responsible for accumulating most of the debt, the ability of one party to pay a debt more readily, and other factors that are also used in the division of assets.
Even if one spouse is assigned to pay the debt, if a spouse can’t make payments or refuses to pay, the nonpayment of the debt will affect both spouse’s credit scores. When nonpayment becomes an issue, a spouse can request that the payments be enforced by seeking relief in court.
When a spouse receives a gift from a third party, that gift is considered separate property and not subject to equitable distribution of assets in Virginia. However, gifts are given between spouses after a marriage and before separation are considered marital property and must be accounted for and distributed as part of the divorce process.
The person who receives a gift during a marriage and claims it as separate property has the burden of proof to show that the gift or inheritance was intended to be separate property.
Inherited property is considered separate property in Virginia. However, the inheritance can become marital property if it commingled with marital assets. For example, if one spouse inherits a large sum of money but places it in a joint bank account, it will be considered a marital asset. The best way to avoid this is to place all inherited assets into a separate account and document your actions accordingly.
Another way to protect an inheritance is to have a spouse sign a post-nuptial agreement whereby he or she agrees that the inheritance belongs to one spouse only, no matter how it is used in the marriage.
Pensions, IRAs, 401Ks and Retirement Plans
In Virginia, pensions and other retirement accounts are considered marital property if they were accumulated during a marriage. These funds are subject to equitable distribution laws in a divorce. Monies earned either before a marriage or after a separation are considered separate property.
In most cases, a spouse cannot receive more than 50% of the marital portion of the other spouse’s pension, however, there are some exceptions. This can include cases where other marital assets are not sufficient to meet the terms of an equitable distribution. A spouse may offer the other a lump sum buyout or payments may be split once payments actually begin. Pension benefits may also be factored in to alimony and child support calculations.
Determining the exact value of pensions and retirement accounts can be a complex process, and many times an expert such as an accountant, business appraiser, pension valuator, actuary, or a certified divorce financial analyst is retained to make an accurate assessment.
Legally splitting pensions and other retirement funds is a multiple step process. After the divorce has been granted, an attorney or a specialized firm must create a qualified domestic relations order, more commonly referred to as a QDRO.
The QDRO must be approved by the courts and then it can be submitted to the plan administrator who must also approve it. This establishes that a spouse can be considered an alternate payee, and the retirement vehicle is then divided according to the specifics contained in the QDRO.
In Virginia, all real and personal property acquired before a marriage, or property acquired during a marriage through an inheritance or a gift specifically given to one spouse is considered separate property.
Gifts given to one spouse by the other during the marriage are considered marital property.
To be considered non-marital property, a spouse must present clear and compelling evidence that the property is separate. This might be done through the execution of a pre- or post-nuptial agreement or through other similar means.
Spousal Support and Child Support
Alimony (Spousal Support) in Virginia
Spousal support can be awarded to either spouse in Virginia. Courts have discretion in determining the amount, duration and how the spousal support is paid. There are three basic types of support that can be awarded.
Periodic payments for an undefined duration. Often referred to as open-ended spousal support or permanent spousal support, a spouse may be required to pay the other spouse at designated intervals (usually monthly). Payments usually end upon death, remarriage of the spouse receiving the support or if the recipient cohabits in a marriage-like arrangement for a year or more. Courts usually award this type of support in marriages of long duration or when a spouse has limited options and abilities to re-enter the workforce.
Periodic payments for a defined duration. This is known as rehabilitative spousal support and payments are made at regular intervals, but only for a pre-determined length of time. Just like open-ended spousal support, payments can end with the death of either spouse, if the recipient spouse remarries, or the spouse cohabits in a marriage-like arrangement for a year or more. If a spouse is able to gain an education and increase income to a self-supporting level, then the amount of support may be modified.
Lump sum. A lump sum is awarded in a set amount when the court awards it. It may be paid all at once or in installments in some cases.
A court can also award temporary spousal support while a divorce is pending. Spousal support may be denied in some cases, such as when adultery takes place, unless the claim for support can be substantiated to the contrary.
Courts consider many factors when awarding spousal support in Virginia. Those factors include:
- The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature
- The standard of living established during the marriage.
- The duration of the marriage
- The age and physical and mental condition of the parties and any special circumstances of the family
- The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home
- The monetary and nonmonetary contributions of each party to the well-being of the family
- The property interests, both real and personal, tangible and intangible
- The provisions made with regard to marital property under the divorce statute.
- The earning capacity of the parties
- The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability
- The decisions regarding employment, career, economics, education, and parenting arrangements that were made by the parties during the marriage, and their effect on present and future earning potential
- Such other factors, including the tax consequences to each party, and the circumstances and factors that contributed to the dissolution, specifically including any ground for divorce, as are necessary to consider the equities between the parties.
Child Support in Virginia
Virginia courts initially calculate child support based on child support guidelines established by the state. To do this, the court will need to know each spouse’s monthly gross income, employment related daycare expenses, and monthly health care premium costs for each child.
If either parent has another child from a previous marriage, the court may give that parent an adjustment when calculating child support.
Calculations may also be adjusted if a parent exceeds 90 days of custodial time per year, so a judge must also know the number of days each party has custody or visitation.
Either parent may request that the court raise or lower the child support amount.
The factors the court will consider are:
- Actual monetary support for other family members or former family members
- Arrangements regarding custody of the children, including the cost of visitation travel
- Imputed income to a party who is voluntarily unemployed or voluntarily under-employed; provided that income may not be imputed to the custodial parent when a child is not in school, child care services are not available and the costs of such child care services are not included in the computation, and the good faith and reasonableness of changes in employment made by a party
- Any child care costs incurred on behalf of the child or children due to the attendance of a custodial parent in an educational or vocational program likely to maintain or increase the party’s earning potential
- Debts of either party arising from the marriage for the benefit of the child
- Direct payments ordered by the court for maintaining life insurance coverage (for the child), education expenses, or other court-ordered direct payments for the benefits of the child
- Extraordinary capital gains such as capital gains resulting from the sale of the marital abode
- Any special needs of a child resulting from any physical, emotional, or medical condition
- Independent financial resources of the child or children
- Standard of living for the child or children established during the marriage
- Earning capacity, obligations, financial resources, and special needs of each parent
- Provisions made with regard to the marital property, where the property earns income or has an income-earning potential
- Tax consequences to the parties including claims for exemptions, child tax credit, and child care credit for dependent children
- A written agreement, stipulation, consent order, or decree between the parties which includes the amount of child support
- Such other factors as are necessary to consider the equities for the parents and children
If a parent misses child support payments, then the other parent can petition the courts to force payment through several possible means. This can include withholding the parent’s wages or benefits, placing liens on their property, garnishing tax refunds, and in some cases imposing criminal penalties.
Child support in Virginia ends when a child turns 18 unless the child is still in high school and not self-supporting. If the child is still living at home, support can continue until the child turns 19 or graduates from high school. Support can also be extended beyond these milestones if a child is severely and permanently disabled.
Custody and Visitation
Child Custody in Virginia
As it is in all other states, decisions regarding child custody in Virginia are always made with the best interests of the child in mind.
Custody is determined by a number of factors in Virginia’s Juvenile and Domestic Relations District Courts. A parent may be awarded sole custody or a child which gives exclusive rights for physical custody and decision making for the child. The other parent can seek visitation rights in this instance. Joint physical custody may be awarded where both parents share physical custody. Joint legal custody may also be awarded, giving both parents decision-making authority for a child.
The factors that a court weighs in determining the custody of a child include:
- The role each parent has played in the past upbringing of the child
- Age and mental condition of the child
- Age and mental condition of each parent
- The relationship between the child and each parent
- The needs of the child
- The willingness of each parent to actively support the child’s contact with the other parent
- The willingness of each parent to resolve disputes
- Any history of abuse
- The best interests of the child
Courts will also consider negative issues such as drug or alcohol abuse, adultery, criminal convictions, mental health issues or physical or mental impairments that could impact the ability to care for a child.
By itself, substance abuse is not one of the grounds that can be used for divorce in Virginia. However, it could lead to other recognized grounds such as domestic violence which falls under the grounds of cruelty.
Substance abuse will also have an impact on child custody issues as well. If the courts feel that a child is in harm’s way, they will either restrict or deny visitation or custody rights for the parent with the substance abuse problem.
Bifurcation of marital status
Bifurcation means that both parties in a divorce can legally divide their divorce into two stages. The first part satisfies the grounds for the divorce. The marriage is terminated at that point. Bifurcation means that the financial aspects of the divorce such as child custody, visitation, child support, alimony or other contentious issues that may have stalled or that have become major sticking points will be finalized at a later date.
Virginia will allow bifurcation to take place but consider it not a matter of right nor should it be a common practice. As such, courts are given wide discretion to grant bifurcation in irregular situations and when it is necessary to achieve equity.
In Virginia, both parties in a divorce are required to make a full disclosure of their assets and debts that existed at the date of separation. This includes both marital and non-marital property. If there are disagreements about what constitutes a marital vs. non-marital asset, the burden of proof is on the party that made the claim.
Complete disclosures are essential to making sure there is a fair division of assets. Accurate financial disclosures will also have an impact on alimony and child support as well.
If a spouse is reluctant to disclose assets or it is suspected that a spouse may be hiding assets, it is possible to go through a process known as discovery. This will include requests for documents, sworn testimony, depositions and subpoenas, if needed. Attorneys may also enlist financial professionals to assist in the discovery process, including private investigators, forensic financial analysts and others to fully uncover all assets.
A spouse who attempts to hide assets could face penalties and could face negative consequences regarding the division of assets that follows. Courts have the authority to award attorney fees and court costs in a divorce and will consider one party’s efforts to hide assets when making that determination.
In Virginia, after a spouse has filed a divorce complaint with the court and served their spouse with papers, the other spouse has 21 days to respond to the complaint. A defendant who does not respond in a timely manner is considered in default, but prior to granting a final judgment the court may grant relief to a defendant who can show good cause as to why they were late in responding.
The exception to filing for a default divorce after 21 days is if the defendant is in the military. If this is the case, that spouse is afforded protections under the Servicemembers Civil Relief Act.
Other Divorce Issues
Domestic violence (cruelty) is one of the grounds that can be cited for getting a divorce in Virginia, but it is secondary to making sure that you seek immediate help if you are in a violent marriage.
To be granted a divorce based on the grounds of cruelty, you must be able to show that your spouse acted with true malice toward you instead of just petty meanness. You will need to show that acts of physical violence took place, or that there was a fear of violence or emotional abuse.
Although domestic violence is more difficult to prove than just claiming irreconcilable differences as a part of a no-fault divorce, doing so can give distinct advantages when it comes to child custody, spousal support and a division of assets. Where domestic violence is present, a judge may decide it is not safe for children to be around the abusive spouse and sole custody may be awarded in the best interests of the children.
While many states will expedite a divorce when domestic violence is present, Virginia still requires that a couple be separated for 12 months before a divorce can proceed on the grounds of cruelty. As a layer of protection during this period, it may be possible to seek a protective order that will make it illegal for an abusive spouse to come anywhere near the other spouse or children.
Once a divorce has been finalized in Virginia, a spouse who receives health care coverage through the other spouse’s plan will no longer be eligible for coverage.
While a divorce is pending, the court may enter an order that will require for one spouse to continue to provide health coverage for the petitioning spouse. Since separation requirements are either one year or six months, depending on circumstances, this will allow the spouse to remain covered during that period.
Health insurance for children in a marriage is usually covered as part of the settlement agreement. It can be negotiated as part of many other issues, but providing coverage is a critical part of the court ensuring that a child’s best interests are protected.
Spouses of federal employees who are covered under the Federal Employees Health Benefits (FEHB) Program may qualify for former spouse coverage if certain conditions are met. Former spouses of military servicemembers may qualify for military retiree healthcare benefits depending on the servicemembers length of service during the marriage.
An ex-spouse can also apply for COBRA benefits. This is a law that protects people from losing health coverage during major life transitions. It allows a spouse to continue with the other spouse’s current coverage for up to 36 months as long as premiums are paid.
Infidelity and Adultery
Infidelity and adultery occur when a spouse has sex voluntarily with someone other than their spouse while they are still married.
In Virginia, adultery can be used as grounds for divorce, but there are circumstances to be aware of when adultery is present.
If you have committed adultery, there this will present a major hurdle when it comes to trying to collect spousal support. Most times you will be denied. You should seek help from an experienced attorney if you are in this situation.
If both spouses have committed adultery, then the two affairs legally cancel each other out and adultery cannot be used as grounds for divorce. You will probably be barred from collecting spousal support in this instance as well.
If you committed adultery and your spouse finds out about it but sleeps with you afterwards anyway, in the eyes of the court, he has legally forgiven you for the adultery…but you still probably won’t be able to collect support.
If you are seeking a divorce based on adultery, there must be clear and compelling proof that adultery took place. This may require evidence or testimony from a third party or a private investigator. This is part of the reason why divorces in Virginia are rarely granted for this reason.
Military Divorces in Virginia
Under normal circumstances, one or both spouses must live in Virginia for at least six months and intend to stay indefinitely to establish residence prior to filing for divorce. Military members are exempted from this requirement and meet the residency requirement as long as he or she has been stationed in Virginia for at least six months regardless of whether or not they intend to stay in the state for any amount of time. The grounds for a military divorce are the same as they are for a civilian divorce.
Just as in a civilian divorce, once paperwork has been filed in Virginia to begin a divorce, copies must be served on a spouse to give him or her a chance to respond. However, when that spouse is in the military, they have certain protections afforded to them by the Servicemembers Civil Relief Act. This allows them to postpone the divorce while they are overseas or otherwise not able to adequately respond to the petition due to military service commitments for up to 60 days after active duty has ended.
Child custody can be a bit complicated due to long deployments and frequent relocation. In most cases (but not always), a judge will assign full custody to the non-military spouse. In addition, Virginia courts may not even have jurisdiction over child custody. These cases are settled in the state or country where the child lives for most of the time. This could mean custody could be settled in a court system of a foreign country, even if the child is a U.S. citizen.
Child support and alimony can be complicated due to the fact that many spouses of servicemembers must focus on their families at the expense of their own career and education. Support can be difficult to calculate as well because it could include base pay, housing allowances, hazard pay, bonuses and other non-monetary compensation. However, both child support and spousal support awards may not exceed 60% of a military member’s pay and allowances.
Normal equitable property division laws apply for a military divorce in Virginia, but the federal government also protects military personnel through the Uniformed Services Former Spouses Protection Act that governs how military benefits are calculated when a divorce takes place. Allocation to an ex-spouse depends on the length of the marriage, the length of the servicemember’s active duty and other factors.
Learn More: Laws Governing Military Divorces
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