Given the high divorce rate in our society, it is very likely that you or someone you know may be affected. Below is a brief overview of the complicated legal issues that may arise in the course of dissolving a marriage. Please keep in mind that the majority of divorces do not result in contentious litigation. Rather, the more likely course of action will be the parties reaching an agreement outside of court.
In Virginia, a divorce may be granted on either fault or no-fault separation grounds. There are three fault grounds for divorce: (1) adultery, (2) conviction of a felony subsequent to the marriage, and (3) cruelty and desertion.
Contested Divorce. A contested divorce is one in which the two parties cannot come to an agreement on a certain issue outside of the courtroom. The disagreement could be over child support, child custody, visitation, property distribution, spousal support, or any combination thereof. The court will allow both sides to present evidence and make arguments, and then it will decide the issue. This decision is binding on both parties (subject to an appeal).
Uncontested Divorce. Virginia is a “no-fault” divorce state, which means that a finding of misconduct by one or both parties is unnecessary to obtain a divorce. An uncontested divorce is one in which: (1) all of the issues have been agreed to by the parties; and (2) the grounds are separation for the statutory period. A couple needs only show that they have lived separate and apart for six months (if there are no minor children of the marriage) or one year (if there are minor children of the marriage). This separation must be continuous, without interruption, and without cohabitation.
Virginia courts do not grant legal separations. However, a couple may execute a separation agreement (also frequently referred to as a “property settlement agreement”) in which they may agree to live separate and apart and divide their property and debts in a mutually acceptable manner. Where the couple has minor children, the agreement may also provide for custody, child support, and visitation. Various other provisions may be included in the agreement, such as a language providing for the payment of spousal support.
There is a long standing principle that people may make as good or as bad of a contract as they wish. This is particularly true in separation agreements, which may be set aside in Virginia only on very limited grounds – when the agreement was entered into under “undue influence” or is deemed “unconscionable.”
Virginia is an equitable distribution state, meaning that the court has the authority in any divorce to classify the property of the parties as separate, marital, or hybrid, to distribute any jointly owned marital property between the parties, and to grant a monetary award to either party to ensure an “equitable distribution” of marital property and debts. “Marital property” is defined as all jointly titled property and any property acquired during the marriage. “Separate property” is any property that a spouse owned prior to the marriage or after the parties’ separation, plus any property acquired as an inheritance or gift. However, separate property may be converted into marital property if it is mixed with other marital assets or if the value increased through the efforts of both parties during the marriage.
When deciding whether to award spousal support, the court generally weighs the financial needs of the spouse requesting support against the other spouse’s ability to pay. Unlike child support, spousal support is not normally calculated by formula under Virginia law. In determining whether to award spousal support, the court considers a number of factors, including: (1) the earning capacity of each spouse and his or her respective expenses, (2) the length of the marriage, (3) the health of each party, and (4) the standard of living established during the marriage. In some cases, the circumstances that led to the breakdown of the marriage may impact whether a person is entitled to spousal support.
Child support is paid by the non-custodial parent to the custodial parent. If the parties are unable to reach an agreement as to the amount of child support to be paid by the non-custodial parent, then the custodial parent may petition the court to determine the amount under Virginia’s “child support guidelines.” These guidelines are a mathematical formula that takes into account each parent’s income, the support of “other children” (i.e., children from prior relationships), daycare expenses, and health care costs. If the court finds there to be extraordinary circumstances, it may deviate from the guidelines.
Modification. The amount of child support ordered by the court may be either increased or decreased based on a “material change of circumstances.” One of the parents must request the change by a formal motion to the court.
Termination. The child support obligation ends upon the emancipation of the child. This occurs when the child reaches the age of 18, enters into a valid marriage, is on active duty with the armed forces, or has willingly lived separate and apart from his or her parents with the parents’ consent and is capable of supporting himself or herself. However, child support will continue for a child who is over the age of 18 if he or she is a full-time high school student, not self-supporting, and living in the home of the parent seeking or receiving child support.
Child Custody and Visitation
Virginia law favors neither the mother nor the father. Rather, the law looks at the relationship each parent has with the child. While grandparents and others may seek custody, there is a presumption in favor of the natural parents. The law allows for several different types of custodial arrangements.
Sole Custody. Pursuant to the Virginia Code, “sole custody” means that one person retains responsibility for the care and control of a child and has primary authority to make decisions concerning the child.
Joint Custody. Virginia Code provides that “Joint custody” means (1) joint legal custody where both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child even though the child’s primary residence may be with only one parent; (2) joint physical custody where both parents share physical and custodial care of the child; or (3) any combination of joint legal and joint physical custody that the court deems to be in the best interests of the child.
Shared Custody. In general, “shared custody” refers to arrangements in which the parents willingly share child care responsibilities and decisions concerning the needs of the child. In the child support context, the shared custody child support guidelines will apply when each parent has physical custody of a child for more than 90 days.
Split Custody. “Split custody” refers to an arrangement in which each parent has primary or sole custody of one or more of the children. Split custody arrangements may only occur in families that have two or more children.
Divided Custody. “Divided custody” refers to an arrangement in which a child lives alternatively with one parent and then the other for specified periods of time, with each parent having primary custody rights while the child resides with that parent.
Grandparent / Stepparent Custody and Visitation
Virginia law allows any “person with a legitimate interest” (ex., grandparents, stepparents, step-grandparents, former stepparents, blood relatives, and family members) to petition for custody or visitation.
Adoption is the process whereby children who have been permanently and legally separated from their birth parents are placed with new parents. The adoptive parents are granted the same rights and obligations as biological parents, while the rights and obligations of the biological parents are terminated. Virginia law permits only two types of placements for adoption: (1) those made by duly authorized agencies (i.e., public social services departments, private licensed child-placing agencies), and (2) those made by birth parents or legal guardians.
Prenuptial and Postnuptial Agreements
Virginia law permits couples to enter into written agreements before or during the marriage to set forth certain stipulations as to spousal support or how assets should be allocated in the event of separation and divorce. Couples with significant premarital assets that they wish to protect may find such agreements advantageous.