VIRGINIA DIVORCE GUIDE

The Building Blocks of Virginia DivorcE

Divorce is the legal ending of a marriage. Most people know someone - or several someones - that have been through divorce. There is no shortage of people ready to tell you the results of their divorce: what she kept, what he got, where the kids ended up. But the outcome of a divorce depends a great deal on the specific facts of each case. So hearing how someone else’s divorce wound up isn’t all that helpful.

While the end results will vary from case to case, the divorce process is largely the same for everyone. Understanding the building blocks of every divorce, and how they fit together, can help make sense of a confusing topic.

GROUNDS for Divorce

The first piece of the puzzle is if you can get divorced at all. Virginia law spells out the "grounds" (or reasons) you can file for divorce. These can be broken down into two categories: "fault based" and "no-fault based." All of these reasons for divorce require corroborating evidence. In other words, they need to be proved by something other than the word of the parties themselves.

Fault Grounds for Divorce

Adultery

If your spouse commits adultery, you can file for divorce. Adutery is when a married individual has sexual intercourse with someone other than their spouse. If this can be proved by clear and convincing evidence, Virginia will grant you a divorce. It will also grant a divorce if your spouse commits "sodomy or buggery" outside the marriage. Adultery, sodomy, and buggery all have specific legal definitions. The key aspect of each one is they are physical acts with someone other than your spouse. Things like cybersex or exchanging explicit photos may be the reason you want a divorce, but they aren't "adultery" for divorce purposes.

Adultery is the only grounds for divorce in Virginia that doesn't come with a waiting period. If your spouse committed adultery, you can get divorced immediately (if you want to). Whether you file right away or not is one of those "case-specific" issues. Depending on the facts of your case, adultery could have a large impact on the outcome, or no impact at all. Talking to an attorney will help answer these types of questions.

Cruelty

If your spouse is cruel and abusive, you can file for divorce. Cruelty is not a "one-size-fits-all" ground for divorce. Cruelty can be repeated acts of physical violence that endanger your health, your safety, or your life. It can also be a single, severe act of violence. Verbal or emotional abuse may also constitute cruelty, but these are much harder to prove compared to physical acts of violence. You can file for divorce for cruelty at any time, but you must live separate and apart for more than a year before the final divorce can be granted.

Abandonment

If your spouse walks out on you, you can file for divorce. Abandonment has two parts: (1) that spouses stop living together; and (2) the party that left intended to desert the marriage. If two spouses agree to separate, neither can charge the other with desertion. If your sposue moved out, but also keeps paying the bills, it can be harder to prove they abandoned the marriage.

A subset of these cases are called "constructive desertion." This is when the person that actually left the home was forced to leave by their spouse. To succeed on a constructive desertion claim, you usually need another fault-based reason for getting divorced as well. A spouse refusing sexual intercourse by itself is not abandonment, but it can be part of a claim if the spouse refuses other marital duties.

Like cruelty, you can file for divorce for abandonment at any time, but you must live separate and apart for more than a year before the final divorce can be granted.

Conviction

If your spouse is convicted of a felony, and given a prison sentence of more than a year, you can file for divorce. The prison sentence has to actually be served by the spouse to qualify. This is an uncommon reason to file for divorce, but it does happen on occasion. You can file for divorce due to conviction and imprisonment at any time, but you must live separate and apart for more than a year before the final divorce can be granted.

No-Fault Grounds for Divorce

The “no-fault” reason for divorce is comparatively simple: the parties must live separate and apart, without interruption, for a set period of time. Most often it’s a year, but if the spouses signed a separation agreement and they have no children together, they only have to live separately for six months. At least one of the spouses must intend their separation will be permanent. If your spouse moved to another state for a job, you aren’t separated for purposes of getting a divorce unless and until you form the intent to permanently separate.

It is possible to be separated for divorce purposes while living in the same home. The financial realities in many cases make that an appealing option for unhappy couples. The biggest hurdle in those situations is getting the outside proof necessary to show a separation. If your friends and family would be shocked to hear you and your spouse are separated, then you probably aren’t going to have anyone or anything to back up your case. The burden is on you to not just tell the court you separated; you have to show them you separated.

Defenses to Divorce

At its core, divorce is a lawsuit like any other. This includes a set of potential defenses you can raise if a divorce is filed against you. If the divorce against you is in the wrong court, the court "lacks subject matter jurisdiction." In other words, that court cannot hear the divorce case (even if it wanted to).

Some of the more common defenses to a divorce are:

Condonation

When the "wronged" party condones, or forgives, their spouse. Forgiving your spouse for cheating (or any other marital fault) means you can't use that fault to file for divorce at a later date. This is usually shown by spouses getting back together or spouses sleeping together. Condonation can only be raised as a defense to acts the other party knew about.

Connivance

When one spouse consents to the misconduct of the other spouse. You can't encourage your spouse to commit adultery and then use it as a reason to get divorced.

Collusion

When spouses work together to "make up" a fault-based ground for divorce. Now that Virginia allows "no-fault" divorce, this doesn't come up very often. If spouses agree to lie about their separation date, however, collusion could apply.

Recrimination

When both sposues are guilty of similar marital fault. If both parties committed adultery, for example, both could file for divorce and defend against a divorce case. This defense can be risky, as it entails an admission of your own fault.

Most of these defenses only apply to fault-based divorces. It would be impossible to forgive your spouse for living separate for more than a year. The only substantive defense to a no-fault divorce is filing before living separate for long enough to qualify.

Equitable Distribution

Equitable distribution is Virginia's method of dividing the "stuff" that spouses have when they divorce. It looks back at the property and debts the spouses acquired during their marriage. This power is limited to dividing "marital" property. For the most part, property owned before marriage, or obtained after separation, are not marital property. Likewise, property acquired during the marriage is by and large marital property. The name or names attached to a property don't determine if an item is marital or separate.

Once the court determines what properties and debts are marital, it moves on to figure out how to divide them between the spouses. The court makes a fact-based decision by applying a list of factors to come up with an "equitable" result. Equitable sounds a lot like "equal," but what it really means is "fair."

Fairness isn't a specific point on a line. It's a range of possible outcomes. It's possible (and probable) that an equal, 50/50 split is also equitable. A court could also apply the factors and decide that a 60/40 split is the fair result.

Spousal Support

After equitable distribution, the court then considers the question of spousal support. Spousal support is a forward-looking issue, trying to determine what each spouse may need after divorce. The court looks at a similar set of factors to make a decision, but the big picture idea for spousal support is "balance."

The difference in each spouse's income is a significant factor in this balancing act, but it's not the only one. The length of marriage and the earning capacity of the spouses also play an important part. Ultimately, the court's job is to balance the need for support of one spouse against the ability of the other spouse to pay it.

Child Custody

If you and your spouse have children together, the court will also need to decide custody. “Custody" consists of two distinct aspects: legal custody and physical custody. The court looks at another list of factors to decide what custody arrangement will be in the "best interests of the child."

Legal Custody

Legal custody deals with the rights and responsibilities to make decisions that impact the child. Most cases result in parents having joint legal custody, but sole legal custody can be granted to one party. Sole legal custody may occur if the other parent has abused the child, abandoned the child, or in similar extreme situations.

Joint legal custody does not require both parents to agree on every decision. It's akin to running a large corporation, where the parents are the Board of Directors. For major decisions like surgery, religious upbringing, or holding a child back a grade, the parents come together and agree what to do. But if a child gets a cold, has a lot of homework, or some other minor item, the parent on hand makes the call.

Physical Custody

Physical custody deals with where the child is on a day-to-day basis. Unless you end up with a perfect 50/50 split, one parent has more time than the other. The parent with more time is the "custodial parent," and the one with less time is the "non-custodial parent." The time the non-custodial parent has with a child is traditionally called "visitation." In the past few years, Virginia has modernized the term to "parenting time" as a better description of the parent-child relationship. Either parent is parenting their child, whether they see them one day a year of every day of the year.

The party designated the custodial parent can impact some of the decisions parents need to make. Having a majority of the time usually means that parent's address is used for school enrollment. They may also end up breaking a tie if parents can't agree on a major decision. The amount of time each parent has can also impact child support.

For more information on Virginia child custody and visitation, see our Virginia Child Custody Guide.

Child Support

In Virginia, parents are financially responsible for their minor children. Typically, this means until a child turns 18 or graduates high school. If a child hasn’t graduated by 19, child support ends at 19 unless the child is (a) severely and permanently disabled, (b) cannot live on their own, and (c) lives with one of their parents. In most cases, the parent with less time with the children pays child support.

Virginia has established child support guidelines that the courts use in all cases. There are three types of child support: sole custody, shared custody, and split custody. Each one uses the guidelines in slightly different ways, but the basics are the same in every case.

All the guidelines start with the total gross income of both parents and the number of children. From this, the "basic support obligation" for their children is calculated. The real-world cost of work-related child care and medical insurance premiums are added to this amount. The result is the total child support need of the parties' children.

This total amount is divided between the parents in proportion to their incomes. Parents receive credit for the direct payments for the insurance premiums and child care included in the guidelines. The remaining balance is the monthly child support amount.

These guideline amounts are presumed to produce the correct child support amount. The court can be convinced to deviate up or down from the guidelines. Some example reasons to deviate are if the child has special needs or if a parent chooses not to work.

Sole Custody

Sole custody is the "standard" child support guideline. This guideline is used when only one parent has the child for more than 90 days in a calendar year. The guidelines described above are applied without any changes.

Shared Custody

Shared custody guidelines are used when both parents have the child for more than 90 days in a calendar year. At that point, both parents pay a significant amount of direct costs to cover the child's needs. The guidelines add in the proportion of total days each parent has with the child. The result is usually a lower child support payment between the parents.

It's important to note that the guidelines are looking at the party's incomes as well as the number of days each has with the child. A 50/50 custody schedule does not mean child support won't be payable to a parent if their incomes aren't also equal. It's also possible for the parent having over half the parenting time ends up paying child support in a shared custody situation.

Split Custody

Split custody guidelines are used when children are on different custody schedules. It could be that each parent has sole custody of a child. It could be a mix of sole and shared custody situations. Split custody is not a common situation. The best interests of the children don't often result in dividing the children. If they do, however, then split custody guidelines apply.

Split custody guidelines apply the sole and shared guidelines to each individual child. The parents total the support he or she owes - or is owed - for each child, and the difference between them is the monthly child support amount.

For more information on Virginia child support, see our Virginia Child Support Guide.