Virginia Divorce

Dissolution of a marriage is not easy.  Even a “friendly” divorce can be emotionally trying.  Couples must agree on the division of assets, child custody, visitation, and support arrangements.  If the divorce is acrimonious, in additional to being enormously stressful, the process can be complex, expensive, and time consuming.  You need a seasoned and thoughtful lawyer who will assess your case based on her experience, and intelligently advise you on the risks and benefits of litigation versus settlement to resolve your case.

Initiating a Divorce:  A Virginia divorce case begins when either a husband or wife files a “Complaint for Divorce” with the Circuit Court in the county where at least one party resides, or in the county where the parties last lived together as a couple, and has it served on the other spouse either by a sheriff or a private process server.  The spouse has 21 days to respond to each of the allegations in the Complaint by filing an “Answer”.  Once the answer is filed, or 21 days elapse without any action, the case can proceed.

Pendente Lite Hearing:  Either spouse can request a hearing to establish the rights and obligations between the parties while the case is pending.  In this hearing, issues such as who gets to live in the marital residence, who will have temporary custody of the children, whether the marital assets will be frozen while the case is pending, and whether support must be paid are resolved.  The “pendente lite” (meaning temporary) order entered at the hearing remains in effect until it is modified or until a final divorce order is signed by the judge.

Grounds for Divorce in Virginia:  Virginia Code ß 20-91 and Virginia Code ß 20-95 set forth the following grounds for divorce:

  • DivorceThe spouses have lived separately and apart without cohabitation for one year without interruption; or
  • The spouses have entered into a separation agreement, have no minor children, and have lived separately and apart without cohabitation for six months without interruption; or
  • A spouse has committed adultery, sodomy or buggery outside the marriage; or
  • One spouse has been convicted of a felony and sentenced to serve more than a year in prison and there has been no cohabitation after the other spouse learned of the conviction.

Spousal Support:  Many considerations are made when determining whether spousal support should be awarded in a divorce.  Spousal support is intended to provide financial stability to the dependent spouse, but it is not granted in all instances.  The court focuses on the following factors in Virginia Code 20-107.1 in awarding spousal support:

  1. 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;
  2. The standard of living established during the marriage;
  3. The duration of the marriage;
  4. The age and physical and mental condition of the parties and any special circumstances of the family;
  5. 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;
  6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
  7. The property interests of the parties, both real and personal, tangible and intangible;
  8. The provisions made with regard to the division of the marital property as part of the divorce;
  9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;
  10. 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;
  11. 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;
  12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and
  13. Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

Child Support:  Child support in Virginia is determined by each party’s income, childcare costs, and health insurance costs for the children.  While the calculations are generally strictly adhered to by the judge, there are occasions in which the court will increase or decrease the figures based on a number of factors.  Such factors include the support of “other” children (meaning children from another relationship), undocumented income such as tips and income from rental properties, additional support necessary for children with special needs, and a party’s voluntary unemployment or underemployment.

Equitable Distribution:  Part of the divorce process is dividing up all the property acquired by the parties during the marriage.  If the parties cannot come to an agreement regarding the distribution of their marital assets, they must appear before a judge who will determine how the assets should be distributed. Virginia law provides for the equitable distribution of marital property in divorce. This means that rather than dividing marital property equally, it is divided in a manner that the court deems fair.  The court considers many factors when determining equitable division of marital property.  At the hearing, each party has the opportunity to present documentary evidence such as bank statements, pay stubs, credit card bills, investment portfolios, etc., and may offer testimony from both parties as well as any witnesses who have personal knowledge of facts that pertain to the marital property.  In some cases it is necessary to also present the testimony of a financial expert.  While it is not required that you have an attorney present at an equitable distribution hearing, it is highly advisable to ensure that you do not waive any rights that you may not know you have, and to ensure that you present the best case possible under the circumstances. This is especially important if your spouse has an attorney.

The Final Order of Divorce:  A divorce order issued by the court legally dissolves the marriage and includes all of the decisions the judge has made, or the parties have agreed to, about property distribution, spousal support, child support, and child custody.

Post Divorce issues:  Once the judge signs the final divorce order, the parties are expected to obey it.  In some cases, one party will not do what he or she was ordered to do.  In such cases, it is necessary to reopen the case and go back to court to enforce the terms of the order.  If one party does not comply with the order, forcing the other party to go to court for enforcement, in most if not all cases the judge will order to non-complying party to pay the legal fees of the other party.

In other cases, it is necessary to have special court orders prepared to divide retirement assets.  In other words, even if the divorce order states that a 401k account must be divided equally, the Plan Administrator for the 401k account will not do anything unless he or she receives a specific type of court order instructing the Plan Administrator about how to divide the account.  This is not a task that lay persons should undertake.  Ms. Callaway has extensive experience with drafting these special court orders so that retirement assets can be divided.