Fault: Grounds for Divorce in Virginia
Grounds for Divorce in Virginia include:
Uncontested, No-Fault Divorce in Virginia
For an uncontested, “no-fault” divorce to be allowed in Virginia, both spouses must be able to resolve all issues between themselves. If you and your spouse do not have any minor children, your uncontested divorce can be filed after six months of separation, and after one year if you have minor children.
The first step toward an uncontested divorce is to reach a comprehensive agreement with your spouse to resolve alimony, child custody and support, division of property and all related issues without involving a judge or going to court. This cannot be accomplished unless both spouses trust and respect each other and can communicate productively.
Even when the divorce is uncontested, couples typically benefit from third-party help when coming to an agreement. Attorneys who are experienced in divorce and Virginia family law can provide valuable guidance to one of the spouses. Divorce mediation services are another good alternative. Both options help couples accelerate their efforts to achieve a mutually satisfactory agreement without risking the negative impact that going before a judge can have on family dynamics.
Separation is the period of time required by Virginia law for married persons to live separate and apart before a Court grants them a final divorce. In some fault-based divorces, no separation period is required. In other circumstances, the time period may be as short as 6 months or as long as one year.
In some cases, spouses may choose separation as an interim remedy. In this case, they enter into a Separation Agreement — ideally one drafted by an attorney who is experienced in Virginia family law and the practical realities of agreeing on property rights and interests, child custody, visitation, support, and spousal support.
In Virginia, the amount of child support is referred to as the Guideline Child Support Amount. It is based upon each parent’s gross monthly income, work and/or education related childcare expenses, out-of-pocket costs to maintain health insurance, the number of days each party has of overnight custodial time per year, and the number of children involved.
The Court will order the calculated amount unless there is legal justification permitting the Court to deviate from the Guideline Child Support Amount. For example, the Court may increase the child support award if a child has significant out-of-pocket health care costs or requires certain educational support. Again, an attorney’s help can be critical in reaching a realistic child support amount.
Child Custody & Visitation
Physical Custody: There are three types of physical custody: primary physical, shared physical, or split physical.
When primary physical custody is ordered, the minor children primarily live with one parent and have specific periods of visitation with the other parent.
When shared physical custody is ordered, the minor children live nearly equally with both parents on a specified schedule. This does not have to mean exactly equal.
When split physical custody is ordered, at least one minor child lives primarily with one parent and at least one other minor child lives primarily with the other parent and these children see each parent on a specified schedule.
Each family is unique. This is why the custodial schedule that identifies when each child is in each parent’s physical custody is also unique.
Legal Custody. There are two official types of legal custody: sole legal and joint legal. An unofficial variation of joint legal is where one parent has final decision-making authority on certain issues if the parents cannot agree on isolated issues, such as health care decisions, vaccine decisions, school choice, or religious upbringing.
Determining Custody and Visitation
The Court considers many factors in determining the right custody and visitation schedule for children. The primary factor is determining what is in the best interests of the child or children. To ensure this, Virginia family law requires the Court to consider the following factors:
- 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 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;
- Each parent’s inclination 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 (i) family abuse as that term is defined in § 16.1-228; (ii) sexual abuse; (iii) child abuse; or (iv) an act of violence, force, or threat as defined in § 19.2-152.7:1 that occurred no earlier than 10 years prior to the date a petition is filed. If the court finds such a history or act, the court may disregard the factors in subdivision 6;
- Such other factors as the court deems necessary and proper to the determination.