How to File for Divorce in Virginia

There are two types of divorce in Virginia: “divorce from bed and board” (elsewhere called a “legal separation”) and “divorce from the bond of matrimony.”

Divorce from Bed and Board

Divorce from bed and board is like a partial divorce. The parties are legally separated but, unlike after a complete divorce, are not permitted to remarry. It can be granted if there has been willful desertion or cruelty. A mere separation by mutual consent is not considered desertion. Instead, desertion (or abandonment) requires both the breaking off of cohabitation and the intent to desert in the mind of that spouse.

“Cruelty” requires acts that tend to cause bodily harm, making it unsafe for the parties to live together. Mental or emotional cruelty is not normally sufficient grounds for divorce in Virginia. Rude words alone will not suffice.

Divorce from the Bond of Matrimony

The fifty states vary on what is considered acceptable grounds for a divorce.

All states allow for “no fault” divorce, meaning it is not necessary to allege that either party did something wrong to cause the breakup of the marriage. The principal requirement is that the parties have been living separately for the statutorily required period in that state. In Virginia, that period is one year. Under Virginia law, at least one of the parties must have intended to break up. The parties must have lived completely apart during their separation, with no cohabitation.

If the parties have signed an agreement setting forth the division of assets and debts (a marital property agreement) or a separation agreement (similar to a divorce decree, but for use only during the period of separation) and there are no minor children, the period is reduced from one year to six months.

Although it is possible to get a divorce without alleging fault, it may still become a factor when spousal support (alimony) is sought. Also, the fault ground can be a factor in dividing marital property.

In Virginia, a judge can award a divorce on fault grounds even though the parties sought a no-fault divorce. Conversely, a judge may award a “no fault” divorce even if grounds for fault exist.

As noted above, the only acceptable fault grounds for a “divorce of bed and board “are desertion and cruelty. It is different in a “divorce from the bond of matrimony.” The only acceptable fault grounds here are:

• Felony Conviction: Divorce from the bond of matrimony will be granted to a party if their spouse was convicted of a felony (a crime punishable by at least one year in jail or prison), the person was actually incarcerated, and the fault-less spouse did not take up residence with the felon-spouse at any point after learning that they were convicted of a felony.
• Divorce for Moral Grounds: “Divorce from the bond of matrimony” can be granted on the grounds of adultery, “sodomy,” (according to statute, meaning oral or anal sex with someone outside the marriage), or “buggery” (meaning sex with an animal or in some other form a sexual act against nature). The faultless spouse must set forth very fact-specific evidence, as mere suspicion or speculation is insufficient proof of the behavior. However, eyewitness testimony is not required.

Annulments

Unlike divorce, where it’s accepted by all that a marriage existed and now it’s being formally dissolved, annulment takes the position that there was never a valid marriage in the first place. An annulment is a legal decree that the marriage was void (nonexistent). Because the law considers that no valid marriage ever took place, there is no way through the normal divorce system to obtain a document terminating it (a divorce decree).

Annulments are rare and are only granted in cases such as one of the partners was tricked into getting married (fraud), pressured or threatened into the marriage (duress), or forced to marry (coercion). An annulment cannot be granted because the marriage was very short, and legal annulments are normally not granted for “religious” reasons.

What Paperwork Do You Need to File for Divorce?

The first step in the divorce process is to draft the petition. The initial paragraphs will address information about the parties, such as their names and birth dates, where and when the marriage took place, and whether the couple is still living together or has separated (and if so, when).

The petition will also include information about children:

• What are their names,
• What are their birth dates,
• Who are they living with now,
• Who they should be living with after the divorce is final, etc.

The petition will also contain paragraphs addressing the division of any property. Typically, there will be paragraphs stating:

• Who will get the marital home, or will it be sold,
• Who will pay the mortgage, if there is one,
• Who will get each car, boat, motorcycle, or another vehicle,
• Who will get specific items of personal property,
• What are the parties’ financial assets: bank accounts, investments, retirement savings, pension plans, etc.
• What are the parties’ debts: credit cards, loans, mortgages, etc., and who should pay for which expenses

The petition for divorce must be “served” on the other spouse. “Serve” is a technical legal term in this instance. It means that a person unconnected to the parties (usually the county sheriff or a private service agency) will find the respondent and place a copy of the petition directly in their hands. If they cannot be found or if they hide from service, all is not lost – there are ways to get around the issue of a missing spouse.

Once the petition has been served, the respondent must file an answer. It will match the petition paragraph by paragraph, stating whether the respondent agrees or disagrees with the petitioner’s positions and requests.

Distribution of Property: Community Property vs. Equitable Distribution

In the United States, two forms of property ownership exist during a marriage.

• In certain states, all property acquired during the marriage belongs to both people and will be split evenly. This form of ownership is called “community property.”
• The other form, called “equitable distribution,” is the form of ownership that Virginia recognizes. The property division is not necessarily 50/50 but will be given to each party based on several factors, including the spouses’ monetary and non-monetary contributions to the family and maintenance of the property during the marriage.

What Should I Do If There are Children Involved?

The battle over child custody and support can become highly emotional, and the parties involved may need a lawyer to help resolve sensitive issues. The court uses the “best interest” of the child standard as its guideline. In determining child support obligations, the court will look at (among other things):

• The role each parent has played in caring for the child
• Where the child will live
• The ages of the parents and children
• The physical and mental condition of each parent and child
• The child’s wishes (if the child is mature and old enough to decide)

Do You Need to Pay Alimony?

Spousal support (formerly called “alimony”) is provided to lessen the financial impact of divorce on the party with the least financial resources. It is not granted as a punishment. The amount awarded depends on several factors, including:

• Each party’s assets
• Each party’s earning potential (note that it is not “how much is each party earning” – the court looks at earning
• potential, which may be different from current earnings
• The duration of the marriage
• The history of the marriage (for example, did one spouse forgo working to care for the children)

Do You Need a Divorce Lawyer?

It can sometimes be difficult to tell what all your options are in a divorce. You may need to hire a qualified Virginia divorce lawyer for advice or representation regarding any legal issues.

An attorney can advise you on how to proceed and inform you of the possible outcomes and consequences of each option. The attorney will draft all of the necessary documentation on your behalf. If you need to appear in court or attend any meetings, your lawyer can be there to represent you.

If your spouse has a lawyer, you should consult with an attorney as soon as possible.