» Divorce and Family Law
No. In order to get divorced in Virginia, one of the parties must have been an actual and bona fide resident and domiciliary of the Commonwealth of Virginia for at least six months prior to the filing of the complaint for divorce. In other words, either you or your spouse must have lived in Virginia and had the intent to permanently remain in Virginia during the six months before the divorce complaint was filed. Since domicile can be a complex issue, parties should consult with an attorney in order to avoid filing in the wrong jurisdiction.
There are also special residency provisions that apply to members of the armed forces. Any member of the armed forces who has been stationed in Virginia for at least six months or who has resided in Virginia for six months prior to being deployed overseas would satisfy the residency requirement needed to file for divorce in Virginia.
A divorce is considered to be uncontested when the parties have resolved all outstanding issues pertaining to their marriage. Typically, the settlement terms agreed to by the parties are memorialized in a Property Settlement Agreement (PSA), which can be drafted before or after the couple has physically separated. A PSA is a legal contract that can cover a myriad of issues such as the division of property and debts, child visitation and custody, spousal and child support, insurance, taxes, etc.
In a no-fault divorce, the party who files for divorce needs only to prove that the couple has been living separate and apart for the mandatory separation period, with the intent that the separation be permanent. For couples without minor children who have entered into separation agreements, the required duration of this separation period is six months. For all other parties, the required separation period is one year.
In a fault-based divorce, the moving party must prove that the other spouse committed wrongdoing that qualifies as one of the fault-based divorce grounds recognized in Virginia. Virginia recognizes three main reasons to file for a fault based divorce: adultery, cruelty and desertion/abandonment.
What does it mean for my spouse and I to be “separated” for the purpose of obtaining a Virginia divorce?
In a Virginia divorce proceeding, separation occurs when a couple ceases to live together as husband and wife with the intent to no longer be married. There is no "legal separation" in Virginia. In other words, separation does not require an agreement between the parties or a written notice. Instead, separation is based on the intent to be separated and the actual physical separation of the spouses. Only one person needs to have the intent to live separate and apart.
In most cases, separation occurs when one spouse moves out of the marital residence. However, under Virginia law it is possible for spouses to be considered separated while they live in the same house, although the evidence needed to prove this requires the expertise of an experienced Virginia family law attorney.
What will I need in order to prove that my spouse and I have been separated for the requisite period?
You will need to have a third party over the age of 18 who can verify the date the separation began, that the spouse on that date had the intent that the separation be permanent, and that the separation has been continuous and uninterrupted since that time. The third party can provide this information by deposition, affidavit, or live testimony before the court. The third party witness should be someone who has visited your residence on multiple occasions since your separation.
Virginia is an equitable distribution state which means that the court divides marital property in a way that it believes to be fair and equitable. The court is not able to divide the separate property of each spouse. The court looks at a number of factors in determining how to distribute and divide marital property. These factors are set forth in Virginia Code 20-107.3.
Sole legal custody: One parent retains sole authority to make all decisions concerning the child. A parent having sole legal custody makes all of the daily decisions about the child's life and all of the major decisions about the child's well-being, including matters of education, medical care and religious development.
Joint legal custody: Both parents share the ability to make decisions concerning the child, even if the child lives primarily with one parent. A parent who has joint legal custody has the right to be an equal partner in making all of the major decisions about the child's well-being, including matters of education, medical care and religious development.
Primary physical custody: One parent provides the primary residence for the child.
Shared physical custody: Both parents share physical and custodial care of the child such that each parent has the child for more than 90 days out of the calendar year.
Split physical custody: When there is more than one child and each parent obtains primary physical or shared custody over at least one of the parties’ children.
What custody/visitation rights do parents in Virginia have before any court orders have been entered?
In the absence of a court order, both parents have equal rights to the physical custody of their minor children and to make decisions on behalf of their children. The parties could agree on how to handle custody and visitation prior to the court hearing and have their agreement entered as a consent order. Alternatively, either party could file a motion for pendente lite relief and ask the court to enter a temporary order for custody and visitation to remain in effect until the court makes a final determination.