In Virginia, divorce cases are heard by the circuit court in each county; at the time of the filing of the case, at least one of the parties must have been resident in Virginia for at least six months.
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Grounds for Divorce
As in other jurisdictions, there are two types of divorce process in Virginia. Divorce from bed and board is a process to resolve the financial and child custody aspects of the parties’ marriage without terminating their marriage, and can be brought at any time. Divorce from matrimony terminates the parties’ marriage and makes them free to remarry, and is only available on specific grounds:
- Separation for one year
- Separation for six months if the parties have entered into a separation agreement and there are no minor children
- Adultery
- Cruelty
- Reasonable apprehension of bodily hurt
- Willful desertion or abandonment
- Felony convictions resulting in imprisonment for at least one year.
Of these, the separation grounds and the adultery ground are used most often, and the other grounds are rarely invoked.
In Virginia, there must be corroborating evidence of the grounds of divorce; the testimony of the parties alone is not enough.
Spousal Support
Virginia courts usually use the following formulas to calculate temporary spousal support at the beginning of a case:
- If the parties have minor children in common, the difference between 26 percent of the payor’s monthly gross income and 58 percent of the payee’s monthly gross income.
- If the parties have no minor children in common, the difference between 27 percent of the payor’s monthly gross income and 50 percent of the payee’s monthly gross income.
These formulas can be deviated from for a variety of reasons, and may be ignored if the parties have combined monthly gross income above $10,000. However, they form a useful “baseline” for determining spousal support in most cases.
In awarding short-term and long-term spousal support at the culmination of a divorce case, Virginia courts have broad discretion as long as they consider the factors below and cite sufficient findings.
- The obligations, needs and financial resources of the parties, including pension, profit sharing or retirement income
- The standard of living established during the marriage
- The duration of the marriage
- The age and physical and mental condition of the parties
- Any special circumstances of the family
- The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home
- The contributions, monetary and nonmonetary, of each party to the well-being of the family
- The property interests of the parties, both real and personal, tangible and intangible
- The provisions made with regard to marital property
- The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity
- The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his earning ability
- The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market
- The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party
- Other factors necessary to consider the equities between the parties
Spousal support is not available in Virginia if the divorce is based on the claimant’s adultery, unless the court finds that denial of maintenance and support would constitute a manifest injustice by leaving a spouse destitute. Many other jurisdictions, including the District of Columbia and Maryland, do not have a similar rule.
Child Custody
Virginia courts make child custody determinations based on the best interests of the child. In making this decision, the judge must consider:
- The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs
- 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 reasonable 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, sexual abuse, child abuse, or an act of violence, force, or threat that occurred no earlier than 10 years prior to the date of the petition
- Other factors as the court deems necessary and proper to the determination
For more on this topic, see Basics of Child Custody Arrangements.
Child Support
Presumptive child support amounts in Virginia are calculated based on a state law formula, and the court retains jurisdiction to change the child support amount based on materially changed circumstances. Virginia’s child support formula usually results in significantly lower amounts than the formulas used in the District of Columbia and Maryland. Child support is usually payable until the child graduates from high school (or until they turn 18 if they have left high school at that time).
Marital Property
Marital property is to be equitably distributed between the parties upon divorce. All property acquired by either spouse during the marriage, however it is legally titled, is generally presumed to be marital property. The main exceptions are personal injury awards, inheritances, and gifts from a third party, which may be kept as separate property as long as they are not commingled with marital assets or re-titled in the spouses’ joint names. Increases in the value of separate property due to the other party’s contributions may be treated as marital property and subject to equitable distribution.
In Virginia, jointly-titled property is generally considered to be marital property even if it was originally separate property of one spouse: this rule differs from many other states, including Maryland.
In Virginia, marital property is generally valued as of the time of the evidentiary hearing. However, a party may request by motion that a different date be used.
Our Fees
Every divorce case is different. Some cases can be resolved quickly and easily, while others require a large amount of attorney effort to resolve. Our firm’s “rule of thumb” is for clients to budget about $2,000 per month for attorney’s fees and costs while the case is pending. A typical contested case with minor children and financial issues that can be resolved before trial will usually cost $8,000 to $12,000 over the course of 6 to 8 months, while a complex case that goes to trial may cost $20,000 to $25,000 over the course of 9 to 12 months. In cases where one spouse does not have the resources to pay for an attorney, but the other spouse does, it may be possible to request an initial award of “suit money” through the court, or to settle a portion of our attorney’s fees from the proceeds of the case.