Virginia Divorce: The good, the bad and the ugly

Last updated on October 22nd, 2018Divorces are never easy. Beyond the emotional part, you must jump through the legal hoops of ending your marriage through the court system. The process…

Last updated on October 22nd, 2018

Divorces are never easy. Beyond the emotional part, you must jump through the legal hoops of ending your marriage through the court system. The process can be a nightmare if you do not know your state laws on divorce.

In Virginia, there is more than one way to get a divorce decree. Virginia law specifies two types of divorce: Divorce from bed and board, and divorce from the bond of matrimony.

Virginia Divorce from Bed and Board

In Virginia, Divorce from Bed and Board is a “partial” or “qualified” divorce. It is a form of legal separation. Couples that have been granted a divorce from bed and board from a Virginia court are separated, but not divorced in the sense that they cannot remarry [i].

Couples that have divorced from bed and board in Virginia can ask the court to “merge” their decree into a Divorce from Bond of Matrimony decree (20-121).

Grounds for Divorce from Bed and Board

For a Divorce from Bed and Board in Virginia, the divorce must be precipitated by a cause. This cause is called the “grounds” for the divorce in legal language.

There are two grounds of divorce for Divorce from Bed and Board in Virginia: “Willful desertion or abandonment”, and “cruelty and reasonable apprehension of bodily harm”.

Virginia Divorce from Bond of Matrimony

Unlike Virginia’s divorce from bed and board, Virginia’s divorce from bond of matrimony is a final decree that dissolves a marriage and thus permits the parties to remarry [ii].

Grounds for Divorce from Bond of Matrimony

The grounds for divorce from bond of matrimony are: “adultery, sodomy or buggery”, “conviction of felony” and “no fault” divorce.

The no fault divorce is unique from other forms in Virginia because it does not require a party to be the “guilty” party.

Merging Decrees

Virginia divorces from bed and board may be “merged” into a divorce from bond of matrimony decree under certain circumstances [iii].

If there are no minor children from the marriage, the court can merge the bed and board divorce decree into a divorce from bond of matrimony decree after 6 months of uninterrupted separation.

For couples with minor children who have a bed and board divorce decree, they may ask the court to merge their decree to a divorce bond from matrimony decree after one year of uninterrupted separation.

Child Custody in Virginia Divorces

Virginia courts use the standard “best interest of the child” to grant custody and visitation agreements [iv].

The court will either grant “joint legal custody” which gives both parents the power to make decisions regarding the child’s health, schooling, and other essential decisions — or the court can grant “sole legal custody”, giving those powers to only one parent.

The relevant Virginia statute lists 10 factors for the court to consider when determining custody and visitation. Most importantly, the court looks at the mental and physical condition of the child(ren) and each parent and the relationship(s) between parent and child.

Child Support

Virginia uses the “Child Support Guidelines” to determine how much a non-custodial parent pays the custodial parent monthly in child support. These guidelines are set out in Virginia Code section 20-108.2.

Virginia’s Child Support Guidelines do include a minimum amount to be paid for each child, regardless of a parent’s income. The court may reduce the minimum payment if the parent challenges it based on inability to pay. The parent must be involuntarily unable to pay the minimum amount, either by reason of incarceration or disability or other reason beyond their control [v].

The minimum amount for monthly child support obligations is determined by percentage of combined gross monthly income. If a parent makes $550 a month and must pay child support for one child from the divorce the minimum amount is $107 per month for that child. Similarly, if the parents gross monthly income is $2,800 with one child from the divorce the minimum monthly amount is $468.

Typically, the court will also determine which parent can claim the child(ren) as dependents on their taxes during the custody arrangement proceedings.

Division of Property

Virginia has adopted “equitable distribution” law to determine the division of marital property and debts in a divorce. The property and debt must be classified as either marital property, separate property or part-marital and part-separate property [vi].

Marital Property

Virginia defines marital property as all property jointly-owned by the spouses, and all other property (that is not classified as separate property) acquired during the marriage.

The most common examples of marital property are homes, joint-checking accounts, and retirement accounts. These properties are usually jointly-owned, in both spouses’ names.

Even for property bought solely by one spouse, such as a new sports car, is considered marital property if it was bought during the marriage.

Marital property is divided between the spouses by balancing several factors. Examples of these factors include duration of the marriage, any contributions made by either spouse to the property, tax consequences of dividing the property, and many more.

Separate Property

Separate property is all property acquired by one spouse before or after the marriage. After the date of separation, any property acquired by one spouse is not considered marital property despite there not being a final divorce decree. Any inherited property during the marriage is also separate property.

If one spouse inherits a family member’s pension or life savings during the marriage, that money is separate property in Virginia. But, if the spouse deposits that money into a joint-checking account, it becomes part-marital, part-separate property.

Purely separate property does not get divided in a divorce.

Virginia Divorce Attorneys

In Virginia, you are not required to have an attorney represent you in your divorce. However, the process can become much longer, much costlier, and more stressful without an experience divorce attorney.

It is highly suggested that even spouses getting a “no fault” divorce use attorneys to navigate the process.

[i] See Va. Code §20-116

[ii] See Va. Code §20-91

[iii] See Va. Code §20-121

[iv] See Va. Code §20-124.3

[v] See Va. Code §20.108.2(b)

[vi] See Va. Code §20-107.3

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