If you or someone you know is considering a divorce, you may feel lost and have no idea what to expect. This article is meant to provide an overview so you can get a glimpse of what to expect in the event of a divorce.
Grounds for Divorce
There are two types of divorce in Virginia: divorce from bed and board (a mensa et thoro) and divorce from the bond of matrimony (a vinculo matrimonii). A divorce from bed and board is a partial divorce, whereby the Husband and Wife are legally separated, but are not permitted to remarry. A divorce from the bond of matrimony is a complete and absolute divorce.
In order to obtain a divorce, there must be “grounds,” which are valid reasons that are prescribed by law. The grounds for divorce are described below.
I. Divorce from Bed and Board
There are two grounds for divorce from bed and board: willful desertion or abandonment and cruelty and reasonable apprehension of bodily harm. If either of these grounds exist, a suit for divorce from bed and board can be filed immediately upon separation. If one year has passed from the date of separation, then there are grounds for divorce from the bond of matrimony.
a. Willful Desertion or Abandonment
Desertion and/or abandonment requires the breaking off of cohabitation and an intent to desert in the mind of the offending party. A mutual consent to separate does not qualify as desertion or abandonment. Further, if one party leaves because of cruelty from the other spouse (discussed later), the leaving spouse may not be guilty of desertion.
b. Cruelty and Reasonable Apprehension of Bodily Harm
Cruelty requires acts that tends to cause bodily harm and makes it unsafe for the spouses to live together. Mental cruelty is typically not enough to constitute a divorce from bed and board in Virginia, although in some circumstances, if the conduct affects and endangers the mental and/or physical health of the spouse, it may be sufficient grounds.
II. Divorce from Bond of Matrimony
There are three grounds for divorce from the bond of matrimony: the “no fault” divorce, adultery, sodomy, or buggery, and conviction of a felony.
a. Separation Divorce (“No Fault”)
A no-fault divorce does not require that there be “fault” grounds to get divorced, as was traditionally the case. In order to file a no-fault divorce from the bond of matrimony, the parties must demonstrate that the parties intended to and have continuously lived separate and apart without any cohabitation for more than one year. In the event that the parties have entered into a Property Settlement or Separation Agreement and they do not have any minor children, the time period is reduced to six months.
b. Adultery, Sodomy, or Buggery
In order to prove adultery, the evidence must be strict, satisfactory and conclusive that the other spouse did in fact engage in sexual relations with another individual. Sodomy is a sexual act, other than intercourse. Buggery is bestiality or a sexual act against nature. These cases are fact specific, though “eyewitness” testimony is not always required.
There are some defenses to an allegation of adultery, sodomy, or buggery. If the accused party can successfully establish any of the defenses, then the divorce will not be awarded on these grounds. The defenses include:
Condonation: The innocent spouse has condoned or legally forgiven the offending behavior by continuing to live with the offending spouse after learning of the adultery, sodomy, or buggery.
Procurement/Connivance: The innocent spouse has encouraged or facilitated the offending spouse in committing adultery, sodomy, or buggery.
Recrimination: The accused spouse is guilty themselves of committing one of the fault grounds for divorce.
Time Barred: The offending acts must have been committed within five years of the bringing of suit. If the events took place more than five years before bringing suit, the divorce will not be granted on these grounds.
c. Conviction of a felony
In the event that one of the spouses is convicted of a felony and sentenced to confinement for more than one year (and is in fact confined), then the other party has grounds for a divorce from the bond of matrimony, so long as they do not resume cohabitation after learning of the confinement.
Unlike marriage, which dissolves a marriage, an annulment decrees that the marriage is void. These are only granted in limited circumstances, such as marriage entered into because of fraud, duress, or coercion. They are not granted because a marriage is for a short period of time or for religious reasons.
Property Rights Created by Marriage
In Virginia, there are three types of property: marital, separate, and part marital and part separated.
Marital property consists of all jointly-titled property and any other property (other than separate property) that is acquired by either or both of the parties from the date of marriage through the date of separation.
Separate property is property that was owned by either party prior to the marriage, property acquired after the date of separation, and inherited property and/or gifts to one party from a third person.
Some separate property becomes part marital and part separate if it is mixed together with marital property or the value is increased through active efforts of either party during the marriage.
Pension and retirement plans that are accumulated during the marriage are subject to disbursement, though neither party can receive more than one-half of the amount accumulated during the marriage.
Virginia provides for “equitable” distribution of the marital (including part marital and part separate property) in the event of a divorce. This means that the court is not required to divide the property up equally. The court considers various factors when determining how to divide up property, such as the relative monetary and nonmonetary contributions of each party during the marriage. When dividing property, the courts can order monetary awards to one of the parties, divide the property, or order the property sold or transfer jointly-titled property to one of the parties.
Spousal support is awarded to lessen the financial impact of divorce on the party that is not as financially independent. It is not awarded to punish a guilty spouse. When determining what amount to award, the court looks at various factors, including: the respective age of the parties, assets and earning potential, and duration and history of the marriage. Spousal support can be awarded on a temporary or permanent basis. In some instances, the parties may reserve the right to seek spousal support.
Custody and Visitation
If the parents are unable to agree on custody and visitation, the courts will create a schedule. When determining the custody and visitation of a minor child, the court will look to the best interests of the child. There are many factors the court considers, including the age of the parents and child, the existing relationship between the parent and child, the needs of the child, the role each parent has played in the child’s upbringing, and the ability of the parents to communicate effectively with one another.
There are two types of custody: legal custody and physical custody. Legal custody deals with making decisions for the child. The court can grant joint legal custody, where both parents have a role in making decisions for the child, or sole legal custody, where one parent is ultimately responsible for making decisions for the child. Physical custody is the actual parenting time spent with the child. The court can grant either primary physical custody, where one parent has the child the majority of the time, or shared custody, where the visitation is split (both parents have 90 days or more per year).
Normally, the parent who has the child more can receive child support from the other parent. Child support is determined by the needs of the child and the ability of each parent to pay. Virginia has state child support guidelines that calculate the presumed amount, though the court can deviate from that amount in appropriate circumstances. The child support calculator can be found on the Smith | Strong, PLC website at [insert weblink here]. Child support is subject to change so long as the support obligation remains. Either party can seek a modification so long as there are a change in circumstances.
Property Settlement Agreement
If the parties can come to an agreement, they can avoid having to go to court and having the Judge determine for them. A Property Settlement Agreement is a written contract between the parties that sets forth their rights, duties, and obligations that arise from the separation and divorce. They typically include division of property, spousal support, custody, visitation, child support, and attorney’s fees.
Hiring an Attorney
There is no doubt that going through a divorce is a very emotional time. On top of the emotions, there are also a lot of complicated matters. Hiring an attorney is the best way to ensure that all of your bases and needs are covered and that your best interests are properly advocated for. Here at Smith | Strong, PLC, our attorneys create personalized case strategies for your individual, specific needs and always have your best interests in mind.