Approximately 44% of marriages end in divorce across the country. Those are staggering numbers, and while they are better than the roughly 50% we once saw, divorce’s effect on family lives is no better. Divorce is a complicated, contentious, and devastating process for all involved.
The compassionate Virginia divorce attorneys at the law firm of Montagna Law are here to help you get through the complexities of your divorce case. We can handle issues like child custody, spousal support, property division, and the other painful hurdles you must overcome.
It is important to understand that family law entails much more than just divorce. Divorce is, however, often the starting point for someone to need Virginia family lawyers. Following the divorce, other family law issues like property division and child custody arise.
Divorce in Virginia requires both residency and a period of separation. One person from the couple must have been a legal resident of Virginia for a minimum of six months before filing initial divorce papers. If neither individual has lived in the state that long, they must wait to file the documents.
Next, the couple must have lived separately and apart for a continuous period. If the couple has no minor children and has a settlement agreement for a no-fault divorce, the period can be as little as six months. If the couple has children, the separation period must be for a minimum of one year.
Another vital factor in Virginia divorce is that all divorces in the state must have grounds. This does not necessarily mean that every divorce is fault-based — voluntary separation for the minimum period of six months is grounds for a no-fault divorce, for example. It just means that every divorce has to have a reason.
Two types of divorce also exist in Virginia: divorce from bed and board and divorce from the bond of matrimony. Divorce from bed and board means the spouses are legally separated but are still married on paper. They cannot remarry. Divorce from the bonds of matrimony is a full, complete, and absolute divorce.
Many divorces begin as divorce from bed and board and later see separation agreements merged into a divorce from the bonds of matrimony. Grounds for divorce from the bond of matrimony under Virginia family law include the following:
Abandonment or desertion means breaking off cohabitation with the intent to desert one’s spouse. It means proving that one spouse has willfully left the marriage with no justification or cause and with the intention to remain apart for at least a year. It does not necessarily require leaving the home.
If a spouse abandons their marital duties to the point where the marriage becomes intolerable, this is also a form of abandonment. It is not considered abandonment if a spouse leaves home to escape acts of cruelty or because they fear for their safety or their children’s.
Cruelty or the reasonable fear of bodily harm is another ground for divorce. This means that one spouse has performed acts that make living together unsafe for one or both. Often this means physical abuse and repeated domestic violence. Humiliation, mental anguish, and repeated neglect can also be considered cruelty if they are so severe as to cause actual harm and make marriage intolerable.
Cruelty grounds usually require more than a single act of violence unless that act endangered the spouse’s life or created a reasonable fear that it would be repeated. As with most fault-based grounds, clear evidence is required. This could be medical proof of injuries or even the presence of protective orders.
Separation is the common ground for no-fault divorce. If you meet the separation requirements of six months without children or one year with children and have a binding Property Settlement Agreement that resolves all legal issues of the separation, you may file for divorce in Virginia.
Adultery is a misdemeanor crime in Virginia and also forms grounds for divorce. If a married person voluntarily has sexual relations with any person that is not their spouse, and the activity can be strictly and conclusively proven, a fault-based divorce may be granted. Sodomy and buggery are other criminal acts that can be grounds for divorce. Sodomy is any sexual act other than intercourse with someone other than your spouse or committed involuntarily. Buggery refers to sexual acts against nature, like bestiality.
These grounds are serious accusations. Because of this, defenses exist. For example, a divorce cannot be granted if there is no evidence to prove the acts occurred. In addition, if the accusing party resumes sexual relations with the other spouse, they are considered to condone the action. A divorce may not be granted if the innocent spouse contrives to trap the other spouse into creating fault-based grounds. Statutes of limitation also exist; the act must be under five years old at the filing date.
If your spouse is convicted of a felony, has been sentenced to prison for over one year, and is currently imprisoned, this constitutes grounds for divorce. After one spouse learns of the other’s confinement, the parties may not continue cohabitation for divorce to be granted.
The easiest way to file for divorce in Virginia is to complete the paperwork yourself, follow all legal requirements, and move forward. This way is fraught with dangers, however, from incomplete paperwork to the couples disagreeing on one or more aspects of the divorce, which almost always happens.
The basic steps to end a marriage under Virginia divorce law include preparing and filing divorce papers. The first step is to file a divorce complaint, which tells the court which grounds you are citing for your divorce. You will file the documents in person at the court clerk’s office and pay a filing fee which can vary between counties.
You must then deliver the papers to your spouse. This is called a service of process or serving divorce papers. Usually, a constable or sheriff will handle this process. The courts may also provide alternate means of serving papers. You will not have to serve papers if your spouse has signed an Acceptance/Waiver of Service of Process before you file. This then begins the process of divorce.
If you think you have fault-based grounds for a divorce in Virginia, Montagna Law may be able to help. Our experienced attorneys have handled a wide range of family law cases, and we are ready to listen to your story. Call our law office today at (757) 622-8100 or fill out our online contact form to request legal advice and an initial consultation with our divorce lawyers.
The divorce process in Virginia looks different depending on whether the divorce is uncontested or contested. Every divorce is unique, but the general process for each type is outlined below:
Truly uncontested divorces are relatively rare. They can be resolved quickly, but they require the couple to be on the same page with every single aspect of the divorce, with no disagreements whatsoever. In this case, you file your papers, and the courts grant your divorce. They can be finalized in just a few months.
Few divorces, however, remain uncontested. When uncontested divorces reach an impasse in issues like alimony, property division, child custody, or child support, no matter how small the disagreement, the divorce becomes contested. Some couples try alternative dispute resolution methods, such as collaborative divorce, but all too often, they resolve their separation in court through divorce lawyers.
The majority of divorces in Virginia are contested. These can take a long time to resolve and almost always require legal representation from an experienced family law firm.
The first step is to file a complaint stating the grounds for your divorce and outlining a few details of your case. You must then serve the papers to your spouse as outlined above. Be sure to obtain proof that the papers were served. Your spouse can then file an answer to the complaint, in which they will admit to or deny your grounds for divorce. They may also file a counterclaim, such as challenging your request for custody of the children.
Next, you will need to prepare your strategy. Any pre-trial motions are filed at this time, which allows each spouse to make requests such as motions to compel discovery, challenges to various issues, or requests for pendente lite. If you are attempting fault-based grounds, this is the time to gather evidence of your spouse’s offenses. If you have been accused of fault-based grounds, this is the time to prepare a defense.
Not every divorce requires a pre-trial conference. These conferences are intended to address issues that the court sees as potentially problematic at trial, to see if the parties agree on one or more contested issues. If they cannot, the courts will assess the case schedule for litigation.
Pendente lite orders are issued by the courts to temporarily resolve important issues while litigation is ongoing. It may, for example, compel a spouse to begin paying alimony right away, to cover healthcare costs of children or the other spouse, to temporarily place a child, to limit the use of the family residence, or to require a spouse to continue paying joint debts.
The discovery process is among the most critical parts of your divorce case. You and your attorney will perform fact-finding and gather evidence. Discovery can be quite lengthy and may be expensive. It can consist of written or in-person interviews, depositions, subpoenas, and document releases.
After the discovery period, you may decide to bring in experts to testify on your behalf. These experts can be from various fields: financial experts to testify about monetary issues and property valuation, doctors to testify about healthcare, psychologists to discuss mental health issues, and others.
The trial is the major event of the contested divorce. The trial is usually scheduled within six to eight months of you and your attorney requesting the date after discovery is complete. The actual trial proceeds much like any civil trial and usually lasts a few days but can go longer if the case is particularly complicated.
After completing these steps, the divorce will be finalized when the judge decides on the case’s outcome. Depending on the case’s complexity, they will usually issue their order between a few weeks and a few months after the trial. Rarely do they give an order at the trial itself.
The Hampton Roads area sees more military divorces than many other areas. This is because Norfolk is home to the largest naval base in the world. Arlington, in northern Virginia, also has a high concentration of military servicemembers. Military divorces are different than civilian divorces in several important ways.
The process to file for a military divorce is the same as that for a civilian divorce, including residency, grounds for divorce, and separation. However, how alimony and child support are paid can be quite different.
The Servicemembers Civil Relief Act offers servicemen and women certain protections regarding divorce. If a service member has not received notice of divorce, they are protected against default judgments and may be appointed an attorney by the judge. In such a case, proceedings can be held for at least 90 days to allow the servicemember to prepare. Those who did receive notice of divorce papers may request a stay for at least 90 days before a judgment is entered. The courts or the servicemember can file for such a stay.
The Survivor Benefit Plan provides survivor’s benefits and support to a service member’s family if they die on active duty or after retirement. Sometimes the plan may include coverage for former spouses, which is identical to that granted to any current spouse. It is important to understand how this benefit plan may affect you when you go through a divorce. Speaking to a military divorce attorney can be essential in this process.
In addition to the standard division of property under any divorce, the law has provisions where former spouses may be eligible to collect up to 50% of a retired service member’s pension. Under the Uniformed Services Former Spouse Protection Act, the courts can distribute military benefits to an ex-spouse following a divorce and enforce orders through the Department of Defense. Because these cases are so complex, speaking to a Norfolk divorce attorney can be vital for your divorce case to be handled fairly.
Virginia uses a concept for property division called equitable distribution. “Equitable,” in this case, does not mean equal but fair. Couples will be given opportunities during the divorce proceedings to come to agreements between themselves on what they consider fair. A judge will decide for them if they cannot decide on these issues independently.
When the courts make these decisions, your desires are removed from the equation. For that reason, it is often best for the couple and their attorneys to work on coming to an agreement on the issue for themselves.
Prenuptial agreements do come into play, but there are certain situations where you can challenge unfair provisions in such an agreement. If you wish to challenge a prenuptial agreement, however, it is essential to have a Norfolk family law attorney in your corner, as these are generally considered binding contracts.
Custody is separated into two parts. Legal custody refers to the parents’ ability to decide regarding their child’s health and well-being. It relates to decisions like where they go to school, who their doctor will be, what kinds of social activities they can undertake, and the like. When possible, the courts prefer to keep both parents involved in legal custody on some level unless it is not in the child’s best interests for both to be involved.
Physical custody refers to the residence where the child lives most of the time. Sole physical custody means the child lives all the time at one home, while the other parent may have visitation rights. Joint physical custody means the parents share custody on some level, though joint custody need not be 50/50. One parent may have the child 75% of the time while the other has them 25% of the time (a 75/25 spit), for example.
All aspects of child custody are determined based on what the courts view as the child’s best interests. The child’s needs are always prioritized over the parents’ needs.
One parent may need to provide child support, alimony, or both. Child support is money paid to ensure that the child’s needs are fully met. It may include pitching in for healthcare, clothing, school supplies, food, and other necessities to ensure the child’s life remains as close to the same as before the divorce.
Alimony is also called spousal support. This form of support is paid to the ex-spouse to ensure they can maintain the standard of living to which they are accustomed. When determining alimony, courts will look at various factors, including (but not limited to) the employment, employability, and contributions to the household of both spouses. The judge may also consider any fault-based grounds for divorce.
There are no hard and fast rules for child support and alimony amounts. Each case is unique, and the courts will always attempt to be fair and equitable and consider the needs of the children first, followed by the needs of each spouse.
Divorces are exceptionally complicated and devastating to a family. A professional family law attorney can help to execute them as smoothly as possible. They can protect your rights and secure your future against a spouse that may seem willing to take everything away from you. Even divorces that begin uncontested can become highly contentious and combative. An attorney can bring knowledge of the law, experience with divorce cases, and a clear head to the table. They can also be the ally you need.
We have offices in Norfolk, Newport News, and Virginia Beach, and serve the larger Hampton Roads area. Ensuring that we establish honest supportive client relationships in of utmost importance.
Our law practice has helped families get through many family law issues with knowledgeable and experienced legal services. Practice areas include divorce, child custody cases, visitation, support, and all other family law matters. Our lawyers have profiles at Super Lawyers, recognized for their excellence as legal professionals.
Whatever your family’s legal issues might be, we are willing to listen. Contact Montagna Law at (757) 622-8100 or complete our online form to request a case review with a member of our legal team today.