How to file a divorce in Virginia

Whether you live in Virginia or elsewhere, divorce for any married couple will accomplish two things: (1) severing the marital relationship, and (2) dividing assets and debts. If one of them will be unable to be self-supporting after the divorce, the issue of alimony may arise. If there are minor children, they will also need to resolve issues of child custody and support.

Residency and where to file

In order to file for divorce in Virginia, either you or your spouse must be domiciled in Virginia for at least six months. Your domicile is your primary residence. You may be a resident of more than one state, but may only have one domicile (where you have your driver’s license, car and voter registration, etc.). If you are the one filing for divorce, you may file in Circuit Court in the county where your spouse lives, or where you and your spouse last lived together. If your spouse is not a Virginia resident, you will file in the county where you reside.

Procedures

The simplest procedure is an uncontested divorce where you and your spouse can reach an agreement about all issues. You begin by filing a Complaint for Divorce, along with various supporting documents. For an uncontested divorce, one of these documents will be a marital settlement agreement outlining the division of assets, and your agreement regarding any children. These documents are filed with the court, and copies of them are provided to your spouse. You will attend a court hearing, at which time the judge will make sure that all of your paperwork is in order, perhaps ask you a few questions, and enter your Decree of Divorce.   

Grounds for divorce

Grounds for divorce are legally recognized reasons to get a divorce. This is the justification for severing the marital relationship. Virginia, like most states, has what are commonly called no-fault grounds for divorce, and several traditional fault-based grounds.

To get a no-fault divorce in Virginia you need to state in the Complaint for Divorce either that “the parties have been living separate and apart without cohabitation for one year,” or “the parties have been living separate and apart without cohabitation for six months, without interruption, there are no minor children, and the parties have entered into a separation agreement.”

The fault-based grounds for divorce are: adultery (including homosexual acts, but no divorce is allowed if there is cohabitation after knowledge of the acts, or if the case is not filed within one year); conviction of a felony and imprisonment for one year (and no cohabitation after knowledge of the felony); or “where either party has been guilty of cruelty, caused reasonable apprehension of bodily hurt, or willfully deserted or abandoned the other.” However, in most cases, there is no reason to use any of these, since they add complexity to the process by requiring proof.

Property division

A divorce involves dividing property and debts between you and your spouse. Generally, each party will keep his or her separate property, which is property:

• acquired before marriage, or at any time by gift or inheritance
• acquired in exchange for separate property, or
• constituting income from, or increase in value of, separate property (unless from the efforts of the spouse)

All other property is marital property. In the absence dividing marital property the judge must consider the following factors:

• each party’s contributions (including non-monetary) to the well-being of the family
• each party’s contributions (including non-monetary) to the acquisition, care, and maintenance of marital property
• the duration of the marriage
• each party’s age, and physical and mental condition
• the circumstances and factors which contributed to the dissolution of the marriage
• how and when specific items of marital property were acquired
• each party’s debts and liabilities, the basis for such debts and liabilities, and the property serving as security for debts and liabilities
• the liquid or non-liquid character of marital property
• the tax consequences to each party
• any use or expenditure of marital property by either party 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
• any other factors the court deems necessary or appropriate

Alimony in Virginia

Alimony is referred to as maintenance or support in Virginia. Absent an agreement of the parties, the court will determine whether to grant maintenance, as well as the amount and duration of maintenance, based on consideration of the following factors:

• the obligations, needs, and financial resources of the parties
• the standard of living established during the marriage
• the duration of the marriage
• each party’s age, physical and mental condition, and special circumstances
• the extent to which the age, physical or mental condition, or special circumstances of any child would make it appropriate that a party not seek outside employment
• each party’s contributions (including non-monetary) to the well-being of the family
• the property interests of the parties, both real and personal, tangible and intangible
• the provisions made with regard to the division of marital property,
• each party’s earning capacity, including skills, education, and training, and the present employment opportunities for a party possessing such earning capacity
• the opportunity, ability, and time and costs involved, for a party to acquire the education and training to obtain skills needed to enhance his or her earning ability
• the decisions regarding employment, career, economics, education, and parenting arrangements made by the parties, and their effect on present and future earning potential, including the length of time a party has been absent from the job market
• the extent to which either party has contributed to the attainment of education, training, career position, or profession of the other party,
• the tax consequences to each party, and
• any other factor necessary to consider the equities between the parties

Child custody in Virginia

If you and your spouse have any minor children, there will have to be a custody determination. This is basically a matter of figuring out how the children’s time will be divided between the parents, and how decisions will be made. If you and your spouse cannot reach a custody agreement, the judge will decide the issue, after considering the following factors:

• the child’s age, and physical and mental condition, considering changing needs
• each party’s age, and physical and mental condition
• each party’s relationship with the child, and the ability to meet the child’s needs
• the needs of the child, considering important relationships of the child
• each party’s past and future role in the upbringing and care of the child
• each party’s propensity to support the child’s relationship with the other party, including whether a party has unreasonably denied the other party access to the child
• each party’s ability to maintain a close and continuing relationship with the child, and ability to cooperate in resolving disputes regarding matters affecting the child
• the reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age, and experience to express such a preference
• any history of family abuse or sexual abuse, and
• any other factors the court deems necessary and proper

Child support in Virginia

Child support is determined by reference to the Virginia Child Support Guidelines.

Miscellaneous matters

A party’s former name may be restored if it was changed when married.

Filing a divorce can be a complex process, but if you and your spouse can agree on the terms of the divorce you may be able to save time. Following these steps will help you get started.

If you are considering an online divorce, LegalZoom can help you get the divorce documents you need. We help you fill out the paperwork and check it for completeness and accuracy, and provide step-by-step instructions for filing and completing your divorce.