Virginia Divorce Procedures

Virginia Divorce Procedures

Complete overview of Virginia divorce laws for people considering a Virginia divorce or filing a Virginia divorce with issues to be resolved about child custody, child support, visitation and alimony.

Virginia Divorce Residency Requirements

In order to file your Complaint for Divorce in Virginia, you must make sure the Circuit Court has jurisdiction over your case. The most common way spouses are eligible to use a specific court system is by meeting the residency requirements. Meeting the Virginia residency requirements is typically only a concern for a spouse who has recently moved or is planning to move in the near future. The filing requirements are as follows:

In suits for annulment, affirmance, or divorce, the county or city in which the parties last cohabited, or at the option of the plaintiff, in the county or city in which the defendant resides, if a resident of this Commonwealth, and in cases in which an order of publication may be issued against the defendant under § 8.01-316, venue may also be in the county or city in which the plaintiff resides. (Virginia Code – Title 8 – Sections: 8.01-261).

Virginia Grounds for Divorce

The Complaint for Divorce is the initial document filed with the Virginia court. It is in this document that the filing spouse will request the court to terminate the marriage under certain specified grounds.

The court may grant a divorce from the bond of matrimony for one of the following grounds:

No Fault Based Grounds:
(1) Living separate and apart for a period of at least 1 year. If the parties have entered into a separation agreement regarding the property and issues regarding any children, this period of time is reduced to 6 months.

Fault Based Grounds:
(1) For adultery; sodomy or buggery; (2) Conviction of a felony or incarceration for at least 1 year; (3) Where either party has been guilty of cruelty, caused reasonable apprehension of bodily hurt, or willfully deserted or abandoned the other, such divorce may be decreed to the innocent party after a period of one year from the date of such act. (Virginia Code – Title 20 – Sections: 20-91).

Virginia Uncontested Divorce

This information is an overview of the uncontested Virginia divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those “do it yourself divorce” filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in Virginia.

To divorce or legally separate in Virginia, one spouse must be an actual and bona fide resident and domiciliary of the commonwealth for at least six months before filing the complaint. Persons in the military who are on duty in the commonwealth for at least six months are Virginia residents. The divorce may be filed in 1) the county or city in which the spouses last resided together or 2) at the option of the plaintiff in a) the county or city where the defendant resides, if the defendant is a resident of Virginia or b) in the county or city where the plaintiff resides if the Defendant is a nonresident of Virginia.

Virginia has personal jurisdiction over persons properly served when the Defendant 1) is a Virginia resident at the time the action was filed; 2) lived in Virginia when the grounds happened; 3) maintained a home in Virginia; 4) executed an agreement to pay support to a Virginia resident; 5) the parties lived in the commonwealth at the time of the separation that is grounds for divorce; 6) the parties lived in Virginia at the time of the separation that is grounds for divorce.

In Virginia, the filing spouse is called the Plaintiff; the responding spouse is called the Defendant. Actions are filed in Circuit court, Juvenile and Domestic Relations, or Family court.

Grounds for divorce are No-Fault, which means 1) living separate and apart without cohabitation for one year or 2) living separate and apart for six months if there are no children and the spouses have entered into a separation agreement.

Fault grounds are 1) adultery (including homosexual acts), 2) abandonment, 3) conviction and imprisonment for one year, 4) cruelty, and 5) willful desertion.

In Virginia, a person may receive a divorce a mensa et thoro (from bed and board, or a legal separation), but the grounds are different from an absolute (a vinculo matrimonii, or from the bond of marriage). Grounds for a divorce a mensa et thoro include 1) reasonable fear of bodily harm, 2) desertion or abandonment and 3) cruelty.

Virginia permits a simplified divorce. The couple lives separate and apart for six months, and the Defendant spouse waives service of process by signing a waiver in the presence of the clerk of court. In this case, any testimony by the other spouse must be corroborated by a witness.

To begin an uncontested divorce, the Plaintiff files a Bill of Complaint for Divorce. If the Defendant agrees with the action, he or she can file an Answer to the Complaint. By so doing, he or she accepts personal jurisdiction of the court. If not, the Defendant must be served a Summons, which is served on him or her along with a copy of the Complaint. If a Defendant answers the Complaint and files an Acceptance/Waiver Form, the action can move along uncontested.

When required, the Service of Process may be done by the Sheriff, who then files a Return of Service, or by a professional process server or any competent person over 18, who then returns an Affidavit of Service, which is filed. Service may be done by any adult except the Plaintiff.

Like other states, Virginia requires what is termed a “diligent search” to locate a spouse who cannot or will not be found. After this effort has been made, the Plaintiff may serve the Defendant by publication. This requires that the Plaintiff file an Affidavit for Service by Publication. After the court received it, the Plaintiff must prepare an Order for Publication. After the order is approved, the clerk arrange for the publication of the order in a newspaper where the missing spouse may see it.

If the Defendant fails to file an Answer within 21 days of service, the Plaintiff may move for a divorce by default. If, however, the Defendant is in the military, the action may not proceed by Default because the Defendant enjoys protects under the Servicemembers Civil Relief Act.

If the Defendant files an Answer and thereby agrees to the action, of if he or she fails to respond within 21 days of receipt, the Plaintiff may file a Request for an Ore Tenus Hearing. An Ore Tenus Hearing happens in a uncontested divorce when a divorcing spouse appears in court with a witness and testifies directly before the judge.

In Virginia, courts may end the marriages when one spouse meets the residency requirements of the commonwealth. For a court to decide custody, support or property issues, however, the court must have personal jurisdiction over the Defendant. Courts have such jurisdiction when a Defendant has been property served and Virginia has personal jurisdiction.

In Virginia, even in an uncontested divorce, the Plaintiff must prove the essential facts of the case. This hearing may be before a commissioner or a judge. If the action is before a commissioner, the Plaintiff must file a Decree of Reference.

At this hearing, the Defendant needs the following papers:

> a Vital Statistic Form VS-4, which is required in some counties;
> a copy of the marriage license (or a witness present at the marriage);
> Child Support Guidelines, if there are children;
> the Separation Agreement, which may have already been included with the filing of the complaint;
> corroborating witnesses;
> the Final Divorce Decree, which may be a form for spouses with children and without children.

A contested divorce is one where the judge decides for the divorcing spouses what they cannot decide between themselves. The trajectory of a contested divorce begins with the filing of the Complaint, but its course is impossible to predict because both sides often continue to negotiate even as they prepare for trial. If the action comes to trial, the case is conducted as a civil action under the rules of evidence. This means that the parties may not testify to anything other than what they have personal knowledge with the exception that each may testify about what his or her spouse said. Contested divorces that go to trial are expensive and enervating, and good divorce lawyers work heroically to avoid them if possible.

Virginia Simplified Divorce Procedures

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. [Code of Virginia; Title 20, Sections 20-99, 20-99.1:1, 20-107.3, and 20-109.1].

Virginia Property Division Factors

In Virginia, the property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the Domestic Relations Court within the Decree of Divorce.

Virginia is referred to as an “equitable distribution” state. When the parties are unable to reach a settlement, the Domestic Relations Court will take the following approach to dividing the assets; First, it will go through a discovery process to classify which property and debt is to be considered marital. Next, it will assign a monetary value on the marital property and debt. Last, it will distribute the marital assets between the two parties in an equitable fashion. Equitable does not mean equal, but rather what is deemed by the Domestic Relations Court to be fair.

Virginia defines separate property as (i) all property, real and personal, acquired by either party before the marriage; (ii) all property acquired during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party; (iii) all property acquired during the marriage in exchange for or from the proceeds of sale of separate property, provided that such property acquired during the marriage is maintained as separate property; and (iv) that part of any property classified as separate.

Virginia defines marital property as (i) all property titled in the names of both parties, whether as joint tenants, tenants by the entirety or otherwise, except as provided by subdivision A 3, (ii) that part of any property classified as marital, or (iii) all other property acquired by each party during the marriage which is not separate property.

When dividing the property, the court will consider: a. The contributions, monetary and nonmonetary, of each party to the well-being of the family; b. The contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties; c. The duration of the marriage; d. The ages and physical and mental condition of the parties; e. The circumstances and factors which contributed to the dissolution of the marriage f. How and when specific items of such marital property were acquired; g. 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; h. The liquid or nonliquid character of all marital property; i. The tax consequences to each party; j. The use or expenditure of marital property by either of the parties for a 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; and k. Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award. (Virginia Code – Title 20 – Sections: 20-107.3).

Virginia Spousal Support/Maintenance/Alimony Factors

In Virginia the support payments (if any) can certainly influence how the marital property distribution is awarded, which is why it can become a very intricate part of the final outcome of any divorce. Keeping this in mind, if you and your spouse are unable to reach and agreement on this issue, the Domestic Relations Court will order support from one spouse to the other on a case-by-case basis as follows:

When making a decision of whether or not support shall be awarded, how much, and for how long, the court will taking into consideration the following: A. The obligations, needs and financial resources of the parties. B. The standard of living while together as a married couple; C. The length of the marriage; D. The age and health condition of the parties and any special circumstances of the family; E. 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; F. The contributions, monetary and nonmonetary, of each party to the well-being of the family; G. The property owned and income potential of that property owned by each party; H. The property award; I. The earning capacity and employment opportunities; J. 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; K. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market; L. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and M. The tax consequences to each party, as are necessary to consider the equities between the parties. (Virginia Code – Title 20 – Sections: 20-95 and 10-107.1 and 20-108.1).

Virginia Child Custody Factors

In Virginia, joint or sole custody will be awarded by the court to the father or the mother or both based on the best interests of the children standard. The court will consider all relevant factors on a case-by-case basis, but the following is a list of typical factors taken into consideration when determining a custody arrangement that is best for the children. These factors are, but are not limited to; the age of the children, the health of the children, the wishes of the children, the parental roles of each parent, and the needs of the children. (Virginia Code – Title 20 – Sections: 20-107.2).

Virginia Child Support Factors

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; and (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; and (7) any extraordinary capital gains, such as gains from the sale of the marital home. [Code of Virginia; Title 20, Sections 20-107.2, 20-108.1, and 20-108.2].

Virginia Grandparent’s Rights

Grandparent Rights to Visitation: As a part of a decree dissolving the marriage or a decree that neither party is entitled to a divorce, the court may grant visitation to the grandparent if the grandparent has intervened in the suit for dissolution of the marriage. The court must find that the visitation is in the best interest of the child, after considering the statutory best interest factors. Title 20, Section 20-124.1 (C.V. § 20-124.1).

When Adoption Occurs: Adoption terminates all rights.

Child Custody Statutes: Best interest of child considering: (1) age, physical and mental condition of the child and parties; (2) relationship between the child and each party; (3) needs of the child; (4) the role each party played, and will play, in the child’s upbringing and care; (5) any history of family abuse; and (6) any other relevant factor. C.V. §20-1-7.2. 20-107.2.

Parents May Choose: Yes

Virginia Military Divorce Laws

A Virginia military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.

Military Protection From Virginia Divorce Proceedings

There are laws set up to protect active duty military members against being held in “default” from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.

Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local Virginia court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.

Serving an Active Military Spouse

The active duty spouse must be personally served with a summons and a copy of the divorce action in order for a Virginia court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.

Residency and Filing Requirements

The typical military divorce filing requirements are as follows:

- You or your spouse must reside in Virginia
- You or your spouse must be stationed in Virginia

Grounds for Virginia Military Divorce

The grounds for a military divorce in Virginia are the same as a civilian divorce.

Dividing the Property

Along with the normal Virginia property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.

The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.

Child Support and Spousal Support

In Virginia, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances. The normal Virginia child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.

Virginia Child Support Guidelines

The Virginia child support guidelines “at a glance” provides a quick reference to what applicable child support laws are considered and/or not considered when determining the appropriate Virginia child support order.

Virginia Child Support Guidelines

Income Share Model *: YES
Percent of Income Model *: NO
Worksheets Available: YES
Extraordinary Medical Expenses Add on: YES
Childcare Add on: YES
Secondary Education Support: NO
UIFSA: YES

* The Income Shares Model: Virginia child support is calculated by estimating the amount of support that would have been available to the child(ren) if the family had remained intact. This estimated amount is then divided proportionally to the parents according to each parent’s income. This is easily done by using the Virginia child support worksheet and the estimated incomes are typically substantiated by past pay stubs or w-2s.

For example: If the father has a higher income than the mother, he would then be responsible for the greater portion of the child support obligation. Conversely, if the father has a lower income than the mother, he would then be responsible for the smaller portion of the child support obligation.

As a reminder, the child support obligation can manifest itself differently between a custodial and a noncustodial parent.

For example: It is not common for a custodial parent to be paying support to a non-custodial parent.

Virginia Child Support Definitions

DEFINITIONS:

Gross income is defined by Va. Code 20-108.2(C).

For purposes of this section, “gross income” means all income from all sources, and shall include, but not be limited to, income from salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits except as listed below, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, veterans’ benefits, spousal support, rental income, gifts, prizes or awards.

If a parent’s gross income includes disability insurance benefits, it shall also include any amounts paid to or for the child who is the subject of the order and derived by the child from the parent’s entitlement to disability insurance benefits. To the extent that such derivative benefits are included in a parent’s gross income, that parent shall be entitled to a credit against his or her ongoing basic child support obligation for any such amounts, and, if the amount of the credit exceeds the parent’s basic child support obligations, the credit may be used to reduce arrearages.

Gross income shall be subject to deduction of reasonable business expenses for persons with income from self-employment, a partnership, or a closely held business. “Gross income” shall not include benefits from public assistance programs as defined in § 63.1-87, federal supplemental security income benefits, or child support received. For purposes of this subsection, spousal support included in gross income shall be limited to spousal support paid pursuant to a pre-existing order or written agreement and spousal support shall be deducted from the gross income of the payor when paid pursuant to a pre-existing order or written agreement between the parties to the present proceeding.

In cases in which retroactive liability for support is being determined, the court or administrative agency may use the gross monthly income of the parties averaged over the period of retroactivity.

Definitions of Adjustments to Income

D. Any extraordinary medical and dental expenses for treatment of the child or children shall be added to the basic child support obligation. For purposes of this section, extraordinary medical and dental expenses are uninsured expenses in excess of $100 for a single illness or condition and shall include but not be limited to eyeglasses, prescription medication, prostheses, and mental health services whether provided by a social worker, psychologist, psychiatrist, or counselor.

E. Any costs for health care coverage as defined in § 63.1-250, when actually being paid by a parent, to the extent such costs are directly allocable to the child or children, and which are the extra costs of
covering the child or children beyond whatever coverage the parent providing the coverage would otherwise have, shall be added to the basic child support obligation.

F. Any child-care costs incurred on behalf of the child or children due to employment of the custodial parent shall be added to the basic child support obligation. Child-care costs shall not exceed the amount required to provide quality care from a licensed source. When requested by the noncustodial parent, the court may require the custodial parent to present documentation to verify the costs incurred for child care under this subsection. Where appropriate, the court shall consider the willingness and availability of the noncustodial parent to provide child care personally in determining whether child-care costs are necessary or excessive.

Child Support Overview

If you go to court for child support, the amount of child support awarded will be determined in accordance with the Virginia Child Support guidelines.

The judge first determines the income of both parents.

Extraordinary medical and dental expenses, health care insurance costs, and day care costs are also calculated.

If both parents have the child or children more than 90 days per year, then a shared support guidelines worksheet is used. A continuous 24 hour period constitutes a day, and an overnight visit, of less than 24 hours counts as a half day.

Though judges usually order child support in the amount determined by the guidelines, they do have authority to enter a different amount of child support on the basis of the following factors.

1. Actual monetary support for other children, other family members or former family members;

2. Arrangements regarding custody of the children;

3. 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 cost of such child care services are not included in the computation;

4. Debts of either party arising during the marriage for the benefit of the child;

5. Debts incurred for the production of income;

6. Direct payments ordered by the court for health care coverage, maintaining life insurance coverage, education expenses, or other court-ordered direct payments for the benefit of the child and costs related to the provision of health care coverage;

7. Extraordinary capital gains such as capital gains resulting from the sale of the marital abode;

8. Age, physical and mental condition of the child or children, including extraordinary medical or dental expenses, and child care expenses;

9. Independent financial resources, if any, of the child or children;

10. Standard of living for the family established during the marriage;

11. Earning capacity, obligation and needs, and financial resources of each parent;

12. Education and training of the parties and the ability and opportunity of the parties to secure such education and training;

13. Contributions, monetary and nonmonetary, of each party to the well-being of the family;

14. Provisions made with regard to the marital property;

15. Tax consequences to the parties regarding claims for dependent children and child care expenses;

16. A written agreement between the parties which includes the amount of child support;

17. A pendente lite decree, which includes the amount of child support, agreed to by both parties or by counsel for the parties; and

18. Such other factors, including tax consequences to each party, as are necessary to consider the equities for the parents and children.

Virginia Divorce Definitions

This collection of definitions will help clarify some unique characteristics to the Virginia Divorce laws, process and paperwork which is filed with the court.

Filing Party Title:
Complainant

The spouse who will initiate the Divorce by filing the required paperwork with the court.

Non-Filing Party Title:
Defendant

The spouse who does not initiate the Divorce with the court.

Court Name:
Virginia: In the __________ Court of ___________.

The proper name of the court in which a Divorce is filed in the state of Virginia. Each jurisdictional court typically has a domestic relations or a family law department or division.

The state run office devoted to enforcing existing child support orders and collecting any past due child support.

Document Introduction:
In Re the Marriage of:

The lead-in verbiage used in the legal caption or header of the documents filed with the court. The introduction typically prefaces both spouse’s names.

Initial Divorce Document:
Bill of Complaint for Divorce

The title and name of the legal document that will initiate the Virginia Divorce process. The filing spouse is also required to provide the non-filing spouse a copy of this document.

Final Divorce Document:
Decree of Divorce

The title and name of the legal document that will finalize the Virginia Divorce process. This document will be signed by the judge, master, or referee of the court to declare your marriage officially terminated.

Clerk’s Office Name:
County Clerk’s Office of the Family Court

The office of the clerk that will facilitate the Divorce process. This is the title you would address letters to or ask for when contacting the courthouse.

Legal Separation:

The grounds for legal separation are: (1) cruelty; (2) willful desertion; (3) abandonment; and (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.

[Code of Virginia; Title 20, Sections 20-95 and 20-97].

Property Distribution:
Equitable Distribution:

The applicable Virginia law that will dictate how property and debt is to be divided upon Divorce.

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