DIVORCE 101

Types of Divorce

  • Divorce from bed and board (a mensa et thoro) or often called a "legal separation". A divorce from bed and board is a partial or qualified divorce under which a husband and wife are legally separated from each other but are not permitted to remarry.  Any person granted a divorce from bed and board may ask the court to "merge" the decree into a divorce from the bond of matrimony after at least one year has passed from the date the parties originally separated.
  • Divorce from the bond of matrimony (a vinculo matrimonii). A divorce from the bond of matrimony is a complete and absolute divorce.

The law requires that "grounds" (valid reasons for divorce prescribed by law) for divorce must exist and be proven to the court even if the husband and wife agree that a marriage should end. These grounds are briefly described below.


 

Grounds for Absolute Divorce and Legal Separation

 

Traditionally the court only granted divorce for misconduct by one or the other spouse, commonly referred today as "fault" divorce.  Virginia still recognizes fault divorce and will be granted on the following grounds:

  • Adultery, sodomy, or buggery committed outside of marriage. 
  • Either party committed a felony.
  • Cruelty, reasonable apprehension of bodily harm, or willful abandonment of one year.

Modern divorce laws have rightly changed for the better and no longer require “fault” grounds for a divorce - commonly referred to as “no fault” divorce. To be granted, the parties must have continuously lived separate and apart without any cohabitation for one year If children are involved. If no children, then it's 6 months.

 

Although separation provides a "faultless" ground for divorce, fault may still be an issue when spousal support (alimony) is being sought or can be a factor in determining the division of marital property. Further, a judge is free to award a divorce on fault grounds even though "no fault" separation grounds exist, conversely a judge free to award a “no fault divorce” even if fault grounds exist.

 

Grounds for a legal separation include: 

  • cruelty,
  • reasonable apprehension of bodily hurt,
  • willful desertion or abandonment.

Click here for the VA Code regarding grounds for absolute divorce.

Click here for the VA Code regarding legal separation.


 

Contested vs. Uncontested divorce

 

There are two kinds of divorces - contested and uncontested. A contested divorce is one in which the parties cannot agree, either about getting divorced or about the terms of the divorce, such as the division of assets, allocation of debts, alimony, child support, or the custody of children. 

 

In an uncontested divorce, the spouses agree on everything and do not need the court to divide assets or make determinations about spousal or child support or custody. In general, an uncontested divorce will proceed through the system more quickly, be much less complicated, and less of a financial burden.

 

Often couples will begin the process of a contested divorce and then, before the actual trial, reach agreement on the financial terms and otherwise-of the divorce. This is called a settlement. One of the biggest advantages of a settlement is that neither spouse will appeal it, because both by definition agree to it and thus are presumably happy with it. Both parties can therefore be assured of finality and an end to litigation. If you reach a settlement with your spouse, it is essential to have the agreement memorialized in such a way that it makes the settlement legally binding and enforceable.


 

Child Custody

 

This is the crucial issue in most divorces. In determining the custody of minor (under eighteen) children, the court is guided by one standard: the best interest of the child. The court may award "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 in the child's best interests. Custody will not be given to a parent as a reward or deprived from a parent as a punishment. Rather, custody will be awarded to the parent who is most adaptable to the task of caring for the child, and who is able to control and direct the child. Further, custody may be changed if there is a marital change in circumstances after the date of the divorce.

 

Factors considered by the court when awarding custody may include the age of the parent and child, the physical and mental condition of each parent and child, the relationship existing between each parent and each child, the needs of the child, the role played by each parent in the upbringing and caring for the child, the home where the child will live and the child's wishes if the child is of sufficient age, intelligence, and maturity to make such a decision.

 

Another important factor to the court in establishing most custody arrangements is which parent will be the most likely to see to it that the non-custodial parent remains a strong part of the child or children's lives. Often the court will fashion living arrangements such that the child, at least during the school year, will reside primarily with one parent. The other parent will receive visitation with the child. Visitation rights will be set by the court if there is a dispute and the parents cannot voluntarily agree upon satisfactory arrangements.


 

Child Support

 

Normally the party receiving visitation will be called upon to contribute to the support of the minor child. This could be an obligation of the mother, the father, or both, if a third person has custody of the child.

 

The court is guided by the needs of the child and the ability of the supporting parent or parents to pay. The use of the state child support guidelines provides an amount of child support that is presumed to be correct, but the court may deviate from these guidelines in appropriate circumstances. The award is subject to change so long as the obligation to support remains. The child support amount may be increased or decreased if a material change occurs in the circumstances of either or both parents or the child. Non-custodial parents who have their children for more than 90 days per year for visitation have their child support calculated using a different formula that is likely to make the support lower. The court may also require a party to maintain an existing life insurance policy to provide financial security for a child in the event that the parent obligated to pay child support dies.

 

The court can also apportion tax exemptions for the children between the parties.

Annulments

 

Unlike a divorce which dissolves a valid marriage, an annulment is a legal decree that a marriage is void. Annulments are granted only in limited circumstances such as a marriage entered into because of fraud, duress or coercion. An annulment cannot be granted merely because the marriage is of short duration, and legal annulments are normally not granted for "religious" reasons.


 

Property Rights

 

Virginia statutes now provide for the "equitable" distribution of the marital property between the parties at the conclusion of the divorce. "Marital property" consists of all jointly-titled property as well as all other property, other than separate property, acquired by either or both of the parties from the date of the marriage through the time of the final separation. "Separate property" is property owned by one party prior to the marriage, property acquired after the parties have separated, inherited property and/or gifts to one party from a third person. Where "marital property" and "separate property" are mixed together or where the value of "separate property" is increased through the active efforts of either party during the marriage, then such property may be classified as "marital property" or as "part marital and part separate" property.

 

In equitably dividing the marital estate, the courts may order monetary awards to one of the parties, divide the property, order the property sold or transfer jointly-titled marital property to one of the parties. Under Virginia's system of "equitable distribution," the court is not required to divide the marital property on an equal basis. Instead, the court will consider various factors listed in the Virginia equitable distribution statute, including the relative monetary and non-monetary contributions of each of the parties to the well being of the family and to the acquisition and care of the marital property, when determining how to divide the marital assets. Pensions and retirement plans that were accumulated during the course of the marriage are also subject to division by the Court as part of its equitable distribution award. However, by statute, neither party can receive more than one-half of the amount of the other party's pension or retirement plan that accumulated during the marriage.


 

Spousal Support

 

Given the increasing changes to both the law and society, this area of divorce law is in the process of great change. Under recent changes in the Virginia law, the fault of a spouse in causing a divorce may no longer be a complete bar to obtaining spousal support. However, the court will consider the cause of separation as a factor in determining whether or not to award spousal support.

 

Spousal support is not awarded to punish a guilty spouse. Rather, it is provided to lessen the financial impact of divorce on the party who is less financially independent. The amount awarded for support depends upon such factors as the respective ages of the parties, assets and earning potential of the parties and the duration and history of the marriage. The court may award spousal support in periodic payments and/or in a lump. Periodic payments could be awarded for either a set number of years or an indefinite period of time. Spousal support set by the court is subject to modification in the future upon a change in the circumstances of either party.

 

Spousal support does not have to be awarded when the divorce is granted. Instead, the parties may seek a "reservation" of the right to seek spousal support in the future. This reservation will generally last for one half of the length of the marriage.


 

Court Procedures

 

Controversies over custody, child support and spousal support are usually heard before a judge of a Circuit Court. In some cases, such as where no grounds for divorce yet exist, such matters may be heard in a Juvenile and Domestic Relations District Court, independent of the suit for divorce. Depending upon the practices in a given locality, evidence in a divorce case may be taken in the office of an attorney representing one of the parties, in the office of a commissioner appointed by the court to take the evidence, or in a courtroom before a judge.


 

Property Settlement Agreements

 

Rather than having the court rule upon the issues in the case, parties have the option of reaching a voluntary agreement resolving their concerns raised in the divorce. The court will enforce the agreement once it is in writing, signed, sworn to by both parties, and properly notarized. Oral agreements dividing the marital property may also be enforceable, but only if they meet certain strict requirements.

 

A Property Settlement Agreement is a written contract between the parties that sets forth their rights, duties and obligations that arise out of their separation and divorce and may include such things as the division of their property, spousal support, attorney's fees, custody of their children, and child support. Such agreements are encouraged since they may amicably settle the rights of the husband and wife in the estate and property of the other. An attorney's skill and experience can be especially helpful in negotiating and drafting a fair, just, and reasonable Property Settlement Agreement for the parties and their children.