Legal Separation in Virginia

In Virginia, courts do not grant legal separations. Couples may, however, separate through a written agreement that spells out the terms of their separation (often called a “marital settlement agreement” or a “separation agreement”). Or a court may issue a temporary court order (called a “pendente lite” order) to determine the rights and responsibilities of spouses while a divorce is pending.

Although Virginia courts do not grant legal separations, it is a requirement for a no-fault divorce that a divorcing couple demonstrate that they've lived apart, both continuously and intentionally, for a period of at least one year (except where there are no minor children involved and the spouses have entered into a property settlement agreement, in which case the required period of separation is six months).

A limited divorce (also known as a “Divorce a Mensa” or a “Divorce from Bed and Board”) is the equivalent in many ways of a divorce, with a couple of exceptions: it does not break the bonds of matrimony and it generally does not deal with property rights between the spouses without other agreement or another court order,

Initial considerations for Divorce in Virginia

The Circuit Court in the country where the plaintiff (the filing spouse) lives has the jurisdiction to take divorce cases.

To file for divorce in Virginia, either spouse must live in the state for at least six months prior to filing the action for divorce.

The divorce may be filed for in one of three venues:

• (1) the county or city in which the spouses last lived together, or
• (2) the county or city where the defendant resides, if the defendant is a resident of Virginia, or
• (3) the county or city where the plaintiff resides, if the defendant is a non-resident of Virginia

Grounds for Divorce

“Grounds for divorce” are the legal reasons for a divorce. Virginia law permits "no-fault" divorces if a divorcing couple demonstrates that they've lived apart, both continuously and intentionally, for a period of at least one year.

This one-year time period is shortened to only a six-month time period if no minor children are involved and the spouses have entered into a property settlement agreement.

There are different fault grounds for a divorce, separation, and annulment. There are five fault grounds for a court to grant an “absolute divorce”:

• • Adultery, sodomy, or buggery (no specific waiting period if residency requirement has been fulfilled)
• • Conviction of a felony and imprisonment for at least one year
• • Cruelty (one year of separation is required for such act. Cruelty that will support a divorce is anything that tends to cause bodily harm and renders cohabitation unsafe or that involves danger to life, the person, or health. A single act of cruelty will generally not support divorce on this ground)
• • Desertion (one year of separation for each act)
• • Voluntary separation (must live separate and apart without cohabitation for either six months with a valid separation agreement and no minor children or for one year if there is no agreement or you have minor children)

Any one of these grounds, if proven, will result in the complete dissolution of the marriage Divorce can be filed under more than one ground: for instance, adultery and desertion.

In the case of a limited divorce, there are four grounds for a court to grant a “limited divorce”:

• • Cruelty (against the child of the complaining party and/or against the complaining party)
• • Reasonable apprehension of bodily hurt
• • Desertion (construction and actual)
• • Willful abandonment

Limited divorces are usually based on either willful desertion or cruelty. Any one of the above grounds is enough for a limited divorce; a limited divorce will not completely terminate the marital status. A "Limited Divorce" in Virginia is similar to what is called a "Legal Separation" on other states. Limited divorces are very much like an absolute divorce with the major difference being that the parties cannot remarry. Limited divorces can also involve property settlements, alimony, and child support and custody.

Division of Property

In Virginia, courts generally prefer that spouses reach an agreement themselves regarding distribution of debts and properties. However, courts will intervene and decide distribution issues if the parties are unable to reach an agreement.

One of the most complex areas of Virginia divorce law relates to the distribution of property by courts. The method of distribution used in Virginia is called "equitable distribution." This means that a certain type of property, “marital property,” will be distributed “equitably” among the spouses in a divorce. Other property, called separate property, is not divided between the spouses at the time of a divorce and is generally kept by the spouse who originally owned it. In Virginia, there is also third classification of property called “hybrid property.” Note that the word “equitable” does not necessarily mean equal or 50/50. It means that marital property will be divided in a fair or just way under the circumstances.

In Virginia, equitable distribution usually is determined at the conclusion of the divorce proceedings. This distribution determines the relative rights and interests of the divorcing parties in property acquired before, during or even in some cases after the marriage.

"Marital Property"

Marital property is generally defined under Virginia law as any property that includes the names of both spouses or was acquired during the marriage using funds from both parties. Also, any money acquired during the marriage such as bonuses, pension plans, profit sharing or deferred compensation is considered marital property.

“Separate Property”

Separate property is defined under Virginia law as:

• (i) All property, real and personal, acquired by either party before the marriage;
• (ii) All property acquired during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party;
• (iii) All property acquired during the marriage in exchange for or from the proceeds of sale of separate property, provided that such property acquired during the marriage is maintained as separate property; and
• (iv) That part of any property classified as separate. Income received from separate property during the marriage is separate property if not attributable to the personal effort of either party.

“Hybrid Property”

If marital property or significant personal efforts of either spouse during the marriage cause a substantial appreciation in the value of separate property, then that property can become hybrid property, with the increase in value being declared by the divorce court as marital property, regardless of the title.

Alimony in Virginia

Alimony (also referred to as spousal support) is the court-ordered financial support of one spouse by the other spouse as part of a legal separation or a divorce.

In Virginia, alimony is not mandatory in a divorce or legal separation. A court may decide to grant alimony “as it deems reasonable” if it finds that alimony is necessary. Or it can be determined in a marital settlement agreement by the spouses.

Factors Affecting the Amount and Duration of Alimony in Virginia

A court may consider a variety of factors when determining whether to grant alimony and in determining the amount, nature, and duration of alimony. These factors include (but are not limited to):

• • The earning capacity, obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature,
• • The education and training of the parties and the ability and opportunity of the parties to secure such education and training,
• • The standard of living established during the marriage,
• • The duration of the marriage,
• • The age and physical and mental condition of the parties,
• • The contributions, monetary and non monetary, of each party to the well-being of the family,
• • The property interest of the parties, both real and personal, tangible and intangible,
• • The provisions made with regard to the marital property, and
• • Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

If one spouse is able to prove that the spouse seeking alimony committed adultery, then alimony may be barred.

Modifying Orders for Spousal Support

A court may increase or decrease the amount of court-ordered spousal support if either party can show “substantially changed circumstances”

If spousal support is set forth by a property settlement agreement, rather than by court order, the amount of support generally cannot be modified unless there is language in the settlement agreement allowing for such modification.

When do Alimony Payments End?

Alimony may only last for period of time specified in a court order. Or it may last for an indefinite period of time. In general, alimony that has been ordered for an indefinite period of time automatically terminates when either party dies or when the recipient remarries. A spouse who is paying spousal support may generally also petition a court to terminate spousal support if the recipient spouse has cohabitated with another in a relationship like that of a marriage for a year or more.

Tax Consequences of Alimony

It is important to understand that there may be tax implications for individuals who pay or receive alimony. According to Section 71 of the Internal Revenue Code, alimony must be included in the recipient’s gross income and can be excluded from the payer’s gross income.

However, it is critical that payments actually qualify as alimony under the law. To qualify as alimony (also according to Section 71 of the Internal Revenue Code), payments must generally meet five conditions:

• (1) The payment is be a cash payment (such as a check or money order)
• (2) The payment is received by (or on behalf of) a spouse under a “divorce or separation instrument”
• (3) The divorce or separation instrument does not designate the payment as a payment which is not includible in gross cross income as alimony and not allowable as a deduction for the payee spouse (under Section 215 of the Internal Revenue Code).
• (4) The payer and payee are not members of the same household at the time payments are made
• (5) There is no liability to make payments after the death of the recipient spouse

Sometimes it is difficult to determine whether a payment qualifies under the law as alimony. There also may be state and local tax implications for individuals who pay or receive alimony. Therefore, it is best to consult with an attorney or qualified tax professional.

Child Support in Virginia

Child support is a court-ordered payment by one parent to the custodial parent of a minor child, generally after divorce or separation. Virginia has adopted child support guidelines that are generally used by courts to calculate child support.

The child support guidelines provide a formula for calculating child support based on a proportion of each parent's gross income and taking into account ordinary expenses of the child such as food, shelter, clothing, education and medical needs. These guidelines are applied unless a party can show that application of the guidelines would be unjust and inappropriate in a particular case. There is a schedule for monthly basic child support obligations that has been provided in the Virginia Code in order to assist the court to determine a basic child support model.

Continuation of Child Support beyond 18th Birthday

The child support could be continued beyond 18 years of age if the court finds the child is:

• (i) a full-time high school student;
• (ii) not self-supporting, and
• (iii) living in the home of the party seeking or receiving child support until the child reaches the age of 19 or graduates from high school, whichever occurs first. The court may also order the continuation of support for any child over the age of 18 who is:
  • (i) severely and permanently mentally or physically disabled
  • (ii) unable to live independently and support himself; and
  • (iii) resides in the home of the parent seeking or receiving child support.

Child Custody in Virginia

Virginia courts generally prefer that parents reach an agreement themselves regarding child custody. However, courts will determine custody if parents are not able to reach an agreement themselves.

In granting sole custody or joint custody of a child, Virginia courts concentrate on what is in the best interests of the child. This is an important standard and it is what primarily guides courts in their decisions about custody.

Virginia law presumes that a child’s best interests are generally served by a child having frequent and continuing contact with both parents.

In determining custody, courts take into account various factors, including (but not limited to):

• • The age and physical and mental condition of the child;
• • The age and physical and mental condition of each parent;
• • The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
• • The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
• • The role that each parent has played and will play in the future, in the upbringing and care of the child;
• • The propensity of each parent to actively support the child's contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
• • The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
• • The preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
• • Any history of family abuse or sexual abuse;
• • Other factors as the court deems necessary and proper to the determination.

Child Visitation in Virginia

Visitation generally refers to the ability of a noncustodial parent (that is, a parent who does not have primarily custody) to be able to spend time with his or her child.

Virginia courts generally prefer that parents reach an agreement themselves regarding visitation. However, courts will determine custody if parents are not able to reach an agreement themselves.

Virginia law presumes that a child’s best interests are generally served by a child having frequent and continuing contact with both parents. Thus, under Virginia law, a parent who does not have primary custody of a child will generally be allowed reasonable visitation unless a court determines that visitation would endanger the child’s physical health or significantly impair the child’s emotional development.