- Divorce Process
- Residency Requirements
- Grounds for Divorce
- Division of Property
- Spousal Support
- Child Custody
- Child Support
A settlement agreement is a written contract between the parties that sets forth their rights, duties and obligations that arise out of their separation and divorce and may include such things as the division of their property, spousal support, attorney’s fees, custody of their children and child support. Such agreements are encouraged since they may amicably settle the rights of the husband and wife in the estate and property of the other. Once the Agreement is validly entered into it cannot be changed without the consent of both parties. Child custody and support are exceptions to this rule. The court always retains jurisdiction to modify child custody and support upon a material change in circumstances.
If you seek to file a divorce in Virginia, it is important to be aware of the residency requirements prior to filing for your divorce. In order to file for divorce in Virginia you or your spouse must have be a resident of Virginia for at least 6 months. The papers for dissolution of marriage must be filed in the county where the defendant resides or he or she can ask the Court to transfer the case.
Grounds for Divorce
There are two types of divorce in Virginia. A bed and board decree is a partial or qualified divorce under which a husband and wife are legally separated from each other but are not permitted to marry another person. A divorce from the bond of matrimony is an absolute divorce that ends the marriage. Either party to a bed and board decree can ask the court to have that decree “merged” into a divorce from the bond of matrimony after one year from the time the separation commenced. Even if the husband and wife agree that a marriage should be ended, “grounds” (valid reasons for divorce prescribed by law) must exist and be proved to the court.
The bed and board grounds are: Willful desertion or abandonment and Cruelty and reasonable apprehension of bodily harm, both without any required duration. Desertion or abandonment is a breaking off of cohabitation with an intent to desert in the mind of the offender. Both must combine to make the desertion complete. Cruelty and reasonable apprehension of bodily harm is defined as acts that tend to cause bodily harm and thus render living together unsafe amount to the cruelty that is grounds for divorce. Mental cruelty alone is not normally a ground for divorce in Virginia, but if the conduct is such that it affects and endangers the mental or physical health of the divorce-seeking spouse, this can amount to cruelty sufficient to establish grounds for divorce.
The grounds for a divorce from the bond of matrimony include adultery or sodomy, conviction of a felony and confinement for one year, one year after desertion or cruelty, and a separation for one year. In order to obtain a divorce by separation the parties must have lived separately for over one year without interruption of cohabitation and with intent on the part of at least one spouse to end the marriage. The spouse seeking the divorce in court must prove and corroborate the grounds for divorce. The proof is usually the testimony of the spouse and the corroboration is usually the testimony of a third party. Testimony of the two spouses is not sufficient.
Division of Property
Virginia statutes provide for the “equitable” distribution of the marital property of the marriage at the time of the final divorce between the parties. “Marital Property” is defined as all jointly owned property and all other property, other than separate property, acquired by either or both of the parties during the marriage and up to the time of the final separation of the parties. “Separate Property” is property owned by one party at the time of the marriage or inherited property or gifts to one party from a third person and maintained as separate property. Where “Marital Property” and “Separate Property” are mixed together or where “Separate Property” is increased through the active efforts of either party during the marriage, then such property may be classified as “Part Marital” and “Part Separate” property.
In making its equitable distribution awards the courts are authorized to make monetary awards to one of the parties, and may also divide property, order it sold or transfer jointly owned marital property to one of the parties. The court is not required to divide the marital property on an equal basis. In determining an equitable division of marital property, the Court considers the various factors listed in Virginia’s 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.
Pensions and retirement plans are subject to equitable distribution to the extent that the same were accumulated during the course of the marriage of the parties.
Spousal support, when awarded, may be periodic payments for a defined duration or indefinitely or in a lump sum, or any combination thereof. The amount and duration of spousal support will depend upon such factors as the respective ages, assets and earning potential of the parties and the duration and history during the marriage. Spouse support is not awarded to punish a guilty spouse but rather is to lessen the financial impact of divorce on the other spouse.
Under Virginia law, where the grounds of divorce are adultery or sodomy on the part of the spouse seeking spousal support, said spouse will be barred from obtaining spousal support except in cases of manifest injustice.
This is a crucial issue in many divorces. In determining the custody of minor (under eighteen) children, the court is guided by one standard–the best interests of the child. Custody will not be given to a parent as a reward or as punishment to the guilty parent but rather to the one most adaptable to the task of caring for the child and able to control and direct the child.
Other factors considered may include the age of the parent and child, the physical and mental condition of the 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. Custody may be changed if there is a marital change in circumstances.
The court will normally set visitation rights if the parents cannot voluntarily agree upon satisfactory arrangements. An important factor to the court in most custody cases 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.
Normally the party not having custody will be called upon to contribute to the support of the minor child. This could be an obligation of the mother as well as 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 use of the 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.
The award is subject to change so long as the obligation to support remains. It may be increased or decreased if a material change occurs in the circumstances of either or both of the parents 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 that support lower.