Each divorce is unique; however, in all divorce cases the goal is to resolve one or more of the following issues: child support and spousal support, child custody and visitation, and equitable distribution of property and assets.
Starting the Divorce Process in Virginia
A divorce case starts informally when a couple separates and one, or both, parties consider divorce. They may agree on certain issues such as custody and support arrangements on a temporary basis, or they may disagree, in which case one party may file in their local Circuit Court for a divorce, or have their attorney negotiate a compromise on such issues.
Divorce Litigation in Virginia
In Virginia, a divorce action begins when one party files a Complaint, or formal request for divorce, with the Circuit Court in their county. Documents filed with the court are collectively called “pleadings.” The other party may respond by filing an answer to that Complaint, specifically affirming or denying each statement or “allegation.” Sometimes, the responding party may file his or her own request for divorce in a pleading called a Counterclaim. The party filing the first pleading is called the Plaintiff or Petitioner, and the responding party is called the Defendant or Respondent. Generally, being the first party to file confers no significant tactical or legal advantage.
Grounds for Divorce in Virginia
A party may file for a divorce based on fault grounds (such as adultery or desertion) or no-fault grounds (meaning a divorce granted merely because a couple has separated for the requisite amount of time). The decision to file on fault or no-fault grounds is complex.
Grounds for divorce in Virginia include:
- Adultery: When one spouse engages in sexual intercourse with a person not their spouse. Notably, acts of adultery occurring more than five years prior to the divorce filing cannot be used as grounds for divorce.
- Felony: Grounds for divorce exists if one spouse commits a felony, which results in imprisonment of more than one year.
- Cruelty/Desertion or Abandonment: Grounds for divorce exist if a spouse is guilty of cruelty, caused by reasonable apprehension of bodily harm, or if a spouse willfully deserted or abandoned the other spouse.
- Separation: Grounds for divorce exist if the spouses have been living separate and apart without co-habitation for more than one year. This period of time is cut in half if the spouses have no minor children and have resolved all of the disputed issues in their marriage by written agreement.
Resolving Interim Issues with Visitation or Support
Once the case is filed, certain temporary issues (referred to as Pendente Lite issues) such as custody or support may be litigated or negotiated. Other times, the parties may agree on such matters.
Issues often arise with regard to the support and visitation of children, spousal support, and the division of property. If temporary issues are litigated, the parties will schedule a Pendente Lite hearing. At the conclusion of this hearing, the Court will enter a Pendente Lite Order which governs matters until a final resolution of the case.
Spousal Support for Divorce in Virginia
Either spouse can request spousal support (sometimes referred to as alimony) and the spouses can be left to determine the amount between themselves. However, if both parties cannot agree on the amount and duration, the court will intervene. The court will base its decision about alimony on the financial circumstances of both spouses. While the law was not created to penalize either party, the court will take into account the factors in Virginia Code Section 20.107.1 , which include:
- The whole financial picture: income, assets, and retirement plans.
- The standard of living during the marriage.
- Mental and physical health of both spouses.
- Whether or not children are involved.
- The ability of each spouse to earn income.
- The tax consequences each spouse is likely to incur after the divorce.
Job loss by the receiving spouse can initiate an evaluation of spousal support needs. Once again, the factors in determining the needs based on factors of both spouses will be considered.
Child Support for Divorce in Virginia
When it comes to child support, a number of important factors will determine the amount. Virginia law requires that both parents contribute to the support of their children. Importantly, Virginia law seeks to preserve the similar living conditions for the children that they had in the marriage. Therefore, the Virginia General Assembly has set forth child support guidelines, which attorneys use to calculate the presumptive amount of child support in a given case. These guidelines take into account the combined income of the parents, work-related childcare costs, and the health insurance premiums paid by one or both of the parents
Retirement Assets for Divorce in Virginia
Virginia divorce laws consider retirement accounts such as 401(k) accounts, IRA accounts, and pensions (civil, government, and military) to be marital assets, subject to equitable distribution. Many factors are taken into account when the courts decide to split such retirement accounts, but the law prevents the non-owning spouse from receiving more than half of any retirement account’s value.
In the case of 401(k) account, pensions, and other employer-sponsored retirement accounts, the court will issue a QDRO (Qualified Domestic Relations Order) for account division. This document gives the employer permission to distribute the employee’s account according to the parameters set by the divorce decree, separation agreement, or Circuit Court’s ruling without either spouse incurring penalties or tax consequences. Keep in mind that plan administrators must comply with federal regulations, and they each have their own guidelines to follow to comply with this expectation.
In the case of IRAs and Roth IRAs, the assets can be divided as provided for in a separation agreement or final order of divorce. The plan administrator can then divide the assets and transfer them to the appropriate spouse. Crucially, these monies are moved from one IRA to another to prevent tax penalties. A spouse can open a new IRA or use an existing one for this transfer. Once the money is transferred, the receiving spouse is responsible for the future tax liabilities. These taxes fall under the IRA withdrawal rules created by the IRS.
The Discovery Process for Divorce in Virginia
“Discovery” refers to the formal process of obtaining information from each litigant. Every divorce involves information-gathering, which can be accomplished informally by a mutual exchange of financial information, or more formally by interrogatories (written questions that a party must answer under oath), requests for production of documents, depositions, requests for admissions, and other discovery techniques.
Litigation Procedure and Timeframe for Divorce in Virginia
Once the discovery process is underway or complete, the attorneys for each party will set dates for a trial on the issues of support, custody, and property distribution. Some courts choose the date when the attorneys may set a trial date; others permit the attorneys to have more flexibility in scheduling a trial date. Some localities decide these issues at one trial; others require separate trials for custody and financial issues.
The typical time frame between the initial filing for divorce and trial on the issues is approximately 12 to 18 months. However, the court may extend or shorten the time period depending on the exigencies of each case and the resources of the particular court.
Settlement and/or Trial for Divorce in Virginia
At any point in the litigation, the parties may agree on some or all of the issues noted above. If they do agree, they enter a “Marital Settlement Agreement” (a private contract between the parties) or a consent court order that resolves the issue. If a couple is able to resolve their matter by means of an agreement or consent order, obtaining the divorce is normally a straightforward administrative process. If the couple cannot resolve their issues, the court will do so at trial.
It is important to remember that no lawyer, no matter how skilled, can advise you definitively as to the outcome at trial. Many clients want their lawyers to venture a guess as to the likely outcome: what are my chances? A good lawyer will provide you with a range of outcomes and candidly admit that the outcome is dependent on variables over which you have little or no control, such as the individual judge.
Appeal for Divorce in Virginia
Decisions from the Juvenile and Domestic Relations Court (such as custody and support issues involving unmarried parties) may be appealed to the Circuit Court. In these instances, the parties have a new trial on all issues raised in the Juvenile Court proceeding. After the Circuit Court trial, the judge may remand the case back to the Juvenile Court for future modification or enforcement proceedings. Alternatively, the judge may rule that the Circuit Court should retain control of these proceedings.
Decisions from the Circuit Court (such as divorce trials) may be appealed to the Virginia Court of Appeals. In most cases, only specific issues or rulings may be appealed to the Court of Appeals. If a party wins the appeal, the case is normally returned to the trial court judge rendering the initial decision with instructions from the Court of Appeals regarding a rehearing on these particular issues or rulings.
Modification to a Divorce Decree in Virginia
After your divorce is complete, certain court decisions or agreements between the parties may require modifications based upon a change in circumstances. For example, a party may significantly increase his or her income, rendering the former support award unfair or outdated. The other party may therefore seek to have the award changed based upon such circumstances. Generally speaking, issues related to child custody or support may be modified in the best interests of a child regardless of whether the court or the parties resolved such issues.
Enforcement of a Divorce Decree in Virginia
Unfortunately, some clients deal with former spouses or parents who fail to fulfill their agreed-upon or court-ordered obligations. In such situations, it may be necessary to bring a court action for enforcement of court orders or agreements.
Help with the Divorce Process in Virginia
This guide is intended to give an overview of the divorce process in the state of Virginia. Divorce varies extensively from case to case. For more information regarding how this information applies to your particular case, call our office to schedule an appointment.