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Divorce

A few states, including Virginia, continue to recognize traditional grounds for divorce (fault) and offer a limited option for uncontested (no-fault) divorce. Here is a summary.

Daugherty Lucky Family Law

Fault: Grounds for Divorce in Virginia

Every divorce case is different and Virginia family law can be complicated to understand. This is why the first step is to have an experienced attorney assess whether you are entitled to file for and secure a divorce, and whether a fault-based or uncontested approach is in your best interests.

In fault-based divorce proceedings, the petitioning spouse alleges marital misconduct that justifies dissolving the marriage. Fault-based allegations typically lead to an adversarial divorce proceeding where the issues must be litigated to reach a resolution. In rare cases, an accused spouse may decide not to dispute the allegations, so the couple may be able to negotiate a marital settlement out of court.

Grounds for Divorce in Virginia include:

•Adultery, sodomy, or buggery. Allegations must be proven with conclusive evidence and can affect a court’s decision on child custody and spousal support.
Conviction of a felony. If a spouse must serve more than one year in prison, the innocent spouse can obtain a divorce.

•Cruelty and reasonable apprehension of bodily harm. Under Virginia law, “cruelty” must include acts causing bodily harm and rendering living conditions unsafe. Verbal and mental cruelty do not typically qualify as grounds for divorce in Virginia unless mistreatment negatively affects or endangers the victimized spouse’s mental or physical health.

•Willful desertion or abandonment. If one spouse ceases to cohabitate with the other and has the intention of deserting the spouse, the marital relationship is essentially over. The abandonment must continue uninterrupted for 12 months.

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

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.

Child 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.

Mother with child representing child custody

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:

  1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
  2. The age and physical and mental condition of each parent;
  3. 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;
  4. 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;
  5. The role that each parent has played (and will play in the future) in the upbringing and care of the child;
  6. 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;
  7. 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;
  8. 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;
  9. 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;
  10. Such other factors as the court deems necessary and proper to the determination.

“Michael represented me in a contentious child support/custody case. His keen ability to pick up on details, and his inherent understanding of family led to thorough preparations, professional conduct, and a tenacious spirit in the courtroom that allowed us to emerge as winners.”
— Morgan

What do you want life to look like after divorce?

That’s our starting point for finding your best path forward. This avoids spending resources or risking important family dynamics in battles that ultimately won’t advance your goals. Our skills as trial attorneys also give your divorce/custody case an edge, even if we never have to take it all the way to court.

Daugherty Luckey PLLC team in a meeting in northern Virginia

We apply deep experience with Virginia family law to your unique situation. We build your case strategically to focus on the issues that will determine what life looks like after your divorce.

We know how today’s child custody and spousal support decisions will play out for years to come. That’s why we are completely honest and upfront about how your specific case is likely to go — and how it will shape your future.

We find the right remedies for traditional or nontraditional divorce. We are adept at settling separation, divorce, custody and support issues for married couples (including same-sex couples). We understand the new cases shaping the legal rights of grandparents and out-of-town parents. We can also advise unmarried couples who have children, joint property and financial assets — but for whom Virginia separation, custody and divorce laws don’t apply.