Divorce Q & A
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What grounds for divorce are available in Virginia?
Generally, there are two types of divorce grounds in Virginia: fault and no-fault.
- 1. No-Fault Divorce
There are two ways to qualify for a no-fault divorce:
A. Separation of six months: You may qualify for a no-fault divorce based on separation if you meet the following criteria:
- 1. You have been separated for six months. A “separation” means that you are living separate and apart from your spouse with the intention to remain permanently separate and apart, AND
- 2. You have a written, signed property settlement agreement. Even when the parties have no marital property to divide, a written and signed agreement is required to qualify for a divorce based on six months of separation. There is no requirement that the agreement be drafted by an attorney if it meets the requirements for a property settlement agreement, but if there is real estate, pensions or significant property being divided, it is usually advisable to have the agreement drafted by an attorney, AND
- 3. There are no minor children born of the parties to the marriage or born of one party and adopted by the other, and there are no children expected (i.e. the wife is not pregnant).
B. Separation of one year: After one year, a person may get a no-fault divorce based on separation even if the parties have minor children and even if they do not have a signed property settlement agreement. However, if there are disputed issues regarding children or property, the divorce may still be contested. A contested divorce generally requires a trial.
C. There are several types of fault divorce grounds in Virginia.
- 1. Adultery. There is no required waiting period if one spouse can prove that the other spouse has committed adultery. However, proof must be by “clear and convincing evidence.” This is an issue that should be discussed with Ms. Solomon. Sometimes when adultery is involved and the spouse who committed adultery is willing to admit it (as well as the “paramour”), a divorce based on adultery can be obtained immediately with a hearing by deposition in the attorney’s office. If this situation applies in your case, you should discuss this with Ms. Solomon who will explain how this type of “quickie” divorce works.
- 2. Cruelty. Generally, the parties must wait one year after the cruel act to get a divorce, thus cruelty does not speed up the divorce process as does adultery. The cruel act must affect and endanger the mental or physical health of the person seeking the divorce. Generally, if you have already waited a year since the cruel act and have been living separate and apart, it is less expensive to obtain a no-fault divorce based on separation (unless there are other issues involved like spousal support, property division or custody).
- 3. Desertion. Again, the parties must wait one year after the desertion to get a divorce, thus desertion does not speed up the divorce process either. Desertion may be actual or constructive. Actual desertion means that one spouse has left the marital home. Constructive desertion means that one spouse has withdrawn from the marital relationship so completely that they may as well have left the marital home. <l/i>
- 4. Felony Conviction. If your spouse is convicted of a felony, sentenced to more than one year in jail and is actually sent to jail, the other spouse may seek a divorce on this ground. However, if your spouse is actually in jail at the time you file for divorce, the spouse in jail will usually need a “guardian ad litem.” A guardian ad litem is an attorney who represents the spouse in jail. Usually, the spouse that is not in jail ends up having to pay for the guardian ad litem.
What is a contested divorce?
In general, a “contested” divorce is any divorce in which there is a disagreement. The parties may be filing for a “no-fault” divorce and still be in disagreement about the division of property, custody of the children, spousal support, child support, visitation or a multitude of other issues. If there is any disagreement about these type of matters, the divorce is contested. Often, these types of issues can be worked out between attorneys or with a property settlement agreement. IF they are not resolved, then the parties generally end up with a trial. When a trial is necessary, a divorce will take longer than an uncontested divorce and cost more.
How long does it take to get a divorce?
Generally, an uncontested divorce takes about six weeks. The person filing for the divorce is the only party that has to sign any of the documents. The other spouse does not have to sign any pleadings or papers and does not have to appear for the divorce hearing. Uncontested divorces are usually done by “deposition” instead of a trial in front of a judge. The spouse filing for the divorce brings a witness to attest to the fact that the parties are separated. They are sworn in by a notary public with the hearing conducted in the lawyer’s office. It usually takes about half an hour.
Divorces can be expedited if the spouse that is the defendant in the case (the one that is NOT filing the divorce) is willing to sign some pleadings. These are called an acceptance, answer and waiver of notice. If the defendant spouse (the one NOT filing the divorce) signs these papers, then the depositions can be taken right away and the parties can be divorced in one or two weeks depending on how long it takes the Judge to sign the divorce decree. In emergency situations, divorces can be obtained even quicker.
What is an “acceptance?”
An acceptance is a document that states that the person has received the pleadings filed in the case. When a person is willing to sign an acceptance, the sheriff does NOT have to serve that person. It saves the signing spouse the hassle of having to be served by the sheriff.
What is an “answer?”
An answer is a document that states that the defendant spouse (the one NOT filing the divorce) agrees with all the statements in the divorce papers.
What is a “waiver?”
A waiver is a document that essentially waives the 21 day waiting period provided by Virginia law for a spouse to respond and/or object to the divorce pleadings. The person signing the waiver agrees to waive notice of the depositions so that they can be taken right away.
What is a “deposition?”
A deposition is the divorce hearing that is usually done in an attorney’s office instead of in front of the judge. Most uncontested divorces in this area are done by deposition which makes it easy and a lot less intimidating for the parties.
What about an annulment?
Annulments in Virginia can be difficult to get and there are very limited grounds. There are no “trial” marriages in Virginia. An annulment cannot be based on the fact that the marriage was short; there must be certain grounds for an annulment. In general, those grounds are:
- 1. The party did not know what he or she was doing when they got married. For example, a person could be so intoxicated that they did not know they got married.
- 2. The marriage was illegal. Certain types of marriages are illegal in Virginia. For example, you cannot marry certain members of your family.
- 3. There was fraud involved that goes to the heart of the marriage. A fraud based annulment may be difficult to prove and it must involve something essential to the marriage.
There are several types of property in Virginia.
- 1. Separate Property. Separate property is property owned by a spouse prior to the marriage. Property inherited by one spouse or given to that spouse by a third party is also separate. Sometimes separate property can become partially or wholly marital if the other spouse makes a personal contribution to an increase in the value of the separate property or if it is comingled with marital property such that the separate property cannot be traced. Also, if separate money is used to purchase a marital asset, the asset may end up being part separate and part marital. This is a complicated issue and should be discussed with Ms. Solomon if you have any questions in this area.
- 2. Marital Property. Marital property is any property acquired during the marriage. Many times one spouse thinks that because they used their paycheck to pay for an item, it is theirs. This is not the case. Money earned during the marriage is marital money. Debts incurred during the marriage are marital even if they are only in one spouse’s name, unless the debt is for something unrelated to the marriage. Retirement accounts accumulated during the marriage are marital, including any additions to retirement accounts existing prior to the marriage. Usually, marital property is evenly divided between the parties depending on the particular facts of the marriage.
- 3. Part Separate and Part Marital Property. Some property may be part separate and part marital. For example, if one spouse uses separate money (i.e. money they had prior to the marriage or inherited during the marriage) to purchase a marital asset, that spouse may have a separate interest in the marital asset equal to the amount of separate money they put into it and maybe with appreciate. Again, this is a complicated issue that should be discussed with Ms. Solomon.
There are three types of spousal support in Virginia: pendente lite, permanent and temporary or rehabilitative.
- 1. Pendente Lite Spousal Support (a form of temporary support). Pendente Lite support is spousal support paid while the parties are separated and before they are divorced. The Courts in this area use a calculation based on each spouse’s earnings to determine how much the pendente lite support will be, and generally it is awarded in that amount. The amount of temporary support is not representative of how much, if any, permanent alimony will be awarded. A party can get pendente lite support even for a very short marriage while they may not qualify for any other type of support after the divorce. However, if one spouse makes significantly more money than the other, pendente lite support will probably be awarded. Either spouse may petition for pendente lite support. This issue usually only arises in “contested” divorces.
- 2. Permanent Spousal Support (after divorce). Permanent spousal support is spousal support that is paid until one spouse dies or the one receiving the spousal support remarries or cohabitates with a person for a period of one year. An award of permanent spousal support is discretionary with the court. Whether or not the court awards permanent spousal support is based on many factors including the length of the marriage, the relative financial abilities of the parties, the need of the spouse seeking support and the ability to pay of the other spouse, the amount of property divided between the parties, grounds for divorce, and several other factors. The amount of spousal support is also based on these factors and is discretionary with the court. Either spouse may petition for permanent spousal support.
- 3. Temporary Support (after divorce). A court may now award temporary support after divorce. Usually temporary support is awarded when there is a relatively short marriage to allow one spouse to get on their feet financially, receive additional training or education or other reasons. The temporary support is usually based on the relative financial abilities of the parties as well as the duration of the marriage. Either spouse may petition for temporary support.
Custody. There are several types of custody arrangements available in Virginia, and parties may agree on any arrangement that bests suits the parties and the bests interests of the child even if they do not pigeonhole with the below categories of custody.
- 1. Joint Legal Custody. When parties have joint legal custody, they share an equal right to major decisions affecting the child i.e. medical, educational, religious etc. Since neither parent’s decision can override the other parent, it is important that parents be able to communicate with each other about important decisions affecting their child. Otherwise joint legal custody may not work.
- 2. Physical Custody. Physical custody is custody of the child’s body i.e. the child itself. Parents often share joint legal custody with one parent having physical custody of the child.
- 3. Primary Care. Primary care is similar in concept to physical custody. A parent with primary care is responsible for the principal care of the child. Again, parents often share joint legal custody with one parent having primary care of the child.
- 4. Primary Residence. This concept is similar to primary care. It means that the child’s primary residence is with that parent. Primary residence can be alternated. For example, one parent could have primary residence during the school year and the other during the summer.
- 5. Joint Legal and Physical Custody. Joint legal and physical custody means that each parent has an equal voice in major decisions affecting the child and an equal right to the child itself. It does not necessarily mean that each parent has the right 50% of the time, although that is sometimes done in this type of arrangement. Rather, it means that each parent has equal rights as noted above. The time the child spends with each parent depends on the arrangements agreed to by the parents.
- 6. Custody and Visitation. This type of arrangement means that one parent has custody, both legal and physical, and the other parent has visitation rights. Visitation rights may be worded as “reasonable visitation” or “liberal visitation” or visitation may be spelled out in detail including dates, holidays and times. Visitation is worded to suit the needs of the parents and depends again in great part on whether the parents are able to communicate regarding the child.
Visitation. The visitation schedule may be agreed upon by the parties and designed to suit both parents’ schedules and the needs of the child. A somewhat standard visitation schedule consists of visitation with the non-custodial parent every other weekend and sometimes one day per week. Additionally, holidays are shared and alternated and provisions made for extra visitation time during the summer. Father’s Day is with the Father and Mother’s Day is with the Mother no matter whose weekend it is. Different visitation schedules work for different parties and it depends a great deal on how well the parents work together and communicate regarding the child.
Child Support. Child support is based on the Virginia Guidelines for child support. To calculate this amount, the following information is used:
- 1. Each parent’s gross annual income from all sources.
- 2. The cost of health insurance for the child. The additional amount for adding the child to the health insurance policy is used.
- 3. The employment related daycare expenses for the child.
- 4. Any extraordinary medical expenses for the child.
These numbers are used in the formula and then the Guideline amount is calculated from the gross income chart. It is unusual for a Court to deviate from the Guideline amount, but occasionally there are reasons for a deviation.
Name Change: A wife has the right to change her name back to her maiden name or her former married name when she is divorced. A husband may not change the wife’s name without her consent. A request for a name change is simply included in the divorce documents filed with the Court. The Court charges $21.00 to record the name change.