Saturday, July 25, 2009

Virginia Divorce Laws

Residency Requirements for Divorce in Virginia
One of the spouses must have been a resident of Virginia for at least 6 months prior to filing for divorce. The divorce may be filed for in: (1) the county or city in which the spouses last lived together or (2) at the option of the plaintiff: [a] the county or city where the defendant resides, if the defendant is a resident of Virginia or [b] if the defendant is a non-resident of Virginia, the county or city where the plaintiff resides.

Legal Grounds for Divorce in Virginia
  1. No Fault Divorce:
    1. Living separate and apart without cohabitation for 1 year (or)
    2. living separate and apart without cohabitation for 6 months if there are no minor children and the spouses have entered into a separation agreement
  2. General Divorce:
    1. Adultery, including homosexual acts
    2. abandonment
    3. conviction of a felony and imprisonment for 1 year
    4. cruelty
    5. willful desertion

Legal Separation in Virginia
The grounds for legal separation are:

  1. cruelty
  2. willful desertion
  3. abandonment
  4. reasonable apprehension of bodily injury
One of the spouses must have been a resident of Virginia for at least 6 months prior to filing for legal separation.

Simplified/Special Divorce Procedures in Virginia
Separation agreements are specifically authorized by statute and will reduce the time required for living apart by 6 months. In addition, a spouse may waive service of process, but the waiver of service of process form must be signed in front of the clerk of the court. The testimony of either spouse must also, generally, be corroborated by a witness.

Divorce Mediation in Virginia
There are no legal provisions in Virginia for divorce mediation.

Divorce Property Distribution
Virginia is an "equitable distribution" state. The separate property of each spouse, consisting of:

  1. property acquired prior to the marriage
  2. any gifts and inheritances
  3. any increase in the value of separate property, unless marital property or significant personal efforts contributed to such increases
  4. any property acquired in exchange for separate property; will be retained by the spouse who owns it
The marital property, consisting of:
  1. all property acquired during the marriage that is not separate property
  2. all property titled in the names of both spouses, whether as joint tenants or tenants-by-the entireties
  3. income from or increase in value of separate property during the marriage if the income or increase arose from significant personal efforts
  4. any separate property which is commingled with marital property and cannot be clearly traced; will be divided equitably by the court
The court may also order a payment from 1 spouse's retirement benefits, profit-sharing benefits, personal injury award, or worker's compensation award, to the other spouse. The factors for consideration are:
  1. the contribution of each spouse to the acquisition, care, and maintenance of the marital property
  2. the liquid or non-liquid character of the property
  3. the length of the marriage
  4. the age and health of the spouses
  5. the tax consequences
  6. any debts and liabilities of the spouses, the basis for such debts and liabilities, and the property which serves as security for such debts and liabilities
  7. how and by whom the property was acquired
  8. the circumstances that contributed to the divorce
  9. the contributions, monetary and non-monetary, of each spouse to the well-being of the family
  10. any other factor necessary to do equity and justice between the spouses

Alimony and Spousal Support
Either spouse may be awarded maintenance, to be paid in either a lump sum, periodic payments, or both. The factors for consideration are:

  1. the opportunity, ability and time necessary to acquire sufficient education and training to enable the spouse to find appropriate employment, and that spouse's future earning capacity
  2. the standard of living established during the marriage
  3. the duration of the marriage
  4. the financial resources of the spouses, including marital property apportioned to such spouse
  5. the contribution of each spouse to the marriage, including services rendered in homemaking, childcare, education, and career-building of the other spouse
  6. the tax consequences to each spouse
  7. the age of the spouses
  8. the physical and emotional conditions of the spouses
  9. the educational level of each spouse at the time of the marriage and at the time the action for support is commenced
  10. the property of the spouses
  11. the circumstances which contributed to the divorce
  12. the extent to which the age, condition, or circumstances of any child of the spouses makes it appropriate that the custodial spouse not seek outside employment
  13. any income from pension, profit-sharing, or retirement plans
  14. any contributions by either spouse to the well-being of the family
  15. the earning capacity of the spouses, including the skills, education, and training of the spouses and their employment opportunities
  16. any decisions made during the marriage regarding employment, career, education, and parenting that affected a spouse's earning potential, including the length of time absent from the job market
  17. any other factor the court deems just and equitable
However, permanent maintenance will not be awarded to a spouse who was at fault in a divorce granted on the grounds of adultery, unless such a denial of support would be unjust.

Spouse's Name After Divorce
Upon request, a spouse may have his or her former name restored.

Child Custody After Divorce
Joint or sole child custody will be awarded based on the welfare of the child, and upon a consideration of the following factors:

  1. the age of the child
  2. the child's preference
  3. the needs of the child
  4. the love and affection existing between the child and each parent
  5. the mental and physical health of all individuals involved
  6. the material needs of the child
  7. the role each parent has played in the care of the child
  8. any other factors necessary for the best interests of the child
No preference is to be given to either parent.

Child Support After Divorce
Child support may be ordered to be paid by either parent, and is based on a consideration of the following factors:

  1. the financial resources of the child
  2. the standard of living the child would have enjoyed if the marriage had not been dissolved
  3. the physical and emotional conditions and educational needs of the child
  4. the earning capacity of each parent
  5. the age and health of the child
  6. the division of marital property
  7. the monetary or non-monetary contributions of the parents to the family's well-being
  8. the education of the parents
  9. the ability of the parents to secure education and training
  10. the income tax consequences of child support
  11. any special medical, dental, or childcare expenses
  12. the obligations, needs, and financial resources of the parents
  13. any other relevant factors
Official child support guide-lines are provided in the statute, which are presumed to be correct unless there is a showing that the amount would be unjust or inappropriate under the particular circumstances of the case based on the factors above [(1) through (13)] and the following additional factors:
  1. support provided for other children or family members
  2. custody arrangements
  3. voluntary unemployment or under-employment, unless it is the custodial parent and the child is not in school, childcare services are not available, and the cost of childcare services are not included in the computations for child support
  4. debts incurred during the marriage for the benefit of the child
  5. debts incurred for the purpose of producing income
  6. direct court-ordered payments for health insurance or educational expenses of the child
  7. any extraordinary capital gains, such as gains from the sale of the marital home

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