Family Law

a. “Fault” Grounds - The grounds for a “fault-based” divorce are 1) adultery or sodomy, 2) cruelty and reasonable apprehension of bodily harm 3) willful desertion or abandonment and 4) conviction of a felony by either party subsequent to the marriage and confinement for more than one year. If any of the foregoing fault grounds are alleged, a spouse can initiate divorce proceedings shortly after the separation. However, if the grounds of divorce are cruelty, reasonable apprehension of bodily harm, willful desertion or abandonment, a final divorce cannot be granted until after a period of one year from the date the act occurred.

b. “No-Fault” Grounds - A “no-fault” divorce is based on the grounds of a one year continuous, uninterrupted separation of the parties. However, if the parties do not have children and have resolved any issues they may have by entering into a written Separation Agreement, the parties can obtain a divorce after only six months of separation.

The grounds for divorce in Virginia are listed in Virginia Code Section 20-91

a. “Uncontested” Divorce - In an "uncontested" divorce, there must not be any unresolved issues regarding property, support, custody or any other marital issues. Parties will often enter into a written Property/Separation Agreement to resolve these issues and ensure that the divorce is uncontested.

b. “Contested” Divorce - A contested divorce occurs when the parties can not resolve the issues of the divorce amongst themselves and the Court has to decide the issues for them. Although a divorce may initially start out contested, the parties may reach an agreement or resolve their issues during the pendency of the divorce and thereby the divorce would no longer be contested.

The terms "uncontested" and "contested" are often used synonymously with "fault" and "no fault"; however, these terms are not the same. Normally, divorces filed on "no fault" grounds are uncontested, but there could just as easily be a "no-fault" divorce where there are unresolved, contested issues. In the same regards, a "fault" divorce, though normally contested, could have no disputed issues in them at all.

Annulment is different from a divorce in that a divorce dissolves a valid marriage, whereas an annulment is basically a decree by the court that says the marriage is void (as if it never happened). An action for annulment of a marriage is only granted by the court in rare situations. A marriage can be void or voidable. A void marriage is one where the marriage was prohibited by law and therefore it does not require an action of annulment to render it void. Without obtaining an annulment, a party to a void marriage can act as if the marriage never happened. Generally, a marriage is void if it was entered into prior to the dissolution of an earlier marriage, or if it was between relatives. On the other hand, a party to a voidable marriage must obtain an annulment to void the marriage. Normally, a marriage is voidable when it was entered into by fraud or duress of some kind or without disclosure of specific pertinent facts. However, a party applying for annulment will be barred if it appears that they continued to cohabit after they discovered the facts giving rise to the grounds for annulment. Further, if the parties have been married for a period of two years, they will not be granted an annulment in any case. You may wish to review the following statutes to get a better understanding of annulment:
Virginia Code Sections 20-13; 20-38.1; 20-45.1; 20-89.1

a. Legal Separation - In Virginia, there is really not a document that you have to obtain to be legally separated. All that is needed is for the parties to be living separate and apart with the intent of at least one of party to be separated. However, in Virginia there is a divorce from bed and board (a mensa et thoro) which is similar to the legal separation that most other states have. A divorce from bed and board can only be awarded on grounds of cruelty, reasonable apprehension of bodily harm, willful desertion or abandonment. With a divorce from bed and board, you are not completely divorced and therefore cannot remarry, thus it is not commonly used. As soon as the ground of cruelty or desertion exists, the party may commence an action for a divorce from bed and board. There is no waiting period. This kind of “divorce” is most common when you have parties that for strong religious purposes, do not want to pursue a full divorce, but still need the Court to decide some important issues on their behalf. Also, some attorneys may initially file a divorce from bed and board to get before the Court to have issues decided that they would otherwise not have grounds to bring with the intent to later go through with a full divorce when the required time period has expired.

b. Separation Agreement - A separation agreement is a written agreement entered into between the parties to handle the issues that would otherwise need to resolved in court. It normally defines the obligations and duties that arise out of the separation and imminent divorce. It is always less stress, money and time involved when the parties can work out the issues themselves. A separation agreement does just this. Issues such as support, custody or division of property may be amicably resolved in such an agreement. Each party may employ an attorney to draft and/or negotiate the terms of the agreement that will protect the concerns of that party. Once the agreement is executed by both parties, it can be enforced as a written contract. It also can be incorporated into the final divorce decree and enforced as a court order. It simplifies the divorce and essentially turns what could have been a contested divorce into an uncontested divorce.

Spousal support, also called alimony, is money paid by one party to the other as a way to balance the living situation of the parties once the marriage is dissolved. The rationale behind spousal support is to lessen the financial impact of divorce to the spouse who may not be as financially stable as the other party. Especially if one party was financially dependent on the other throughout the marriage. Spousal support may be temporary or permanent. The court may decide to grant the support only during the pendency of the divorce or for a short amount of time to allow the party receiving it time to become self-sufficient. Temporary spousal support is often referred to as "rehabilitative" support. Spousal support is not an automatic entitlement and the court will consider a number of factors in determining whether to award it. Among those are the circumstances and factors that contributed to the breakdown of the marriage (adultery, cruelty etc.). A party may be barred from receiving spousal support due to adultery or another one of the fault grounds. If a party seeking spousal support is not barred for the above listed reasons, then the Court will look at the needs and abilities of the parties to determine whether there is a need for support and the financial ability from the other party to provide it. Virginia Code Section 20-107.1 provides an actual list of the factors the court will consider in awarding spousal support. Among the factors are the duration of the marriage; the standard of living established during the marriage; contributions, monetary and nonmonetary, of each party to the well-being of the family; the age and physical and mental condition of the parties; the obligations, needs and financial resources of the parties; the earning capacity of the parties, including the skills, education and training; the contributions of one party to the education, training or career of the other; the marital property that the parties will receive; property interests of the parties, whether real personal or tangible; and such other factors as are necessary to consider the equities between the parties. Spousal support may take three different forms: 1) periodic payments for defined amount of time; 2) periodic payments for an undefined amount of time; or 3) in a lump sum award. The court may also award any combination of these three forms of support. The court can also reserve a parties right to receive spousal support in the future, even if the party was not initially awarded spousal support. Normally the reservation can continue for a period equal to 50 percent of the length of time beween the date of marriage and the date of separation. The party with the reservation of spousal support will have to file for support within the required time limit to have the matter litigated.

The initial pleading that commences the divorce proceeding is the Bill of Complaint. In the bill of complaint, specific facts have to be alleged. Among many things, the bill of complaint should state out important facts regarding the marriage such as the date and place of the marriage, the names and birth dates of the children of the marriage, the age and addresses of the parties, the separation date, the grounds of divorce and other pertinent facts. Also, if there are any issues that have not been resolved, you should ask the court to determine them in the bill of complaint. If you do not ask for what you want in the bill of complaint, the Court will not grant those things. The Court will only determine what you ask them to in this initial pleading. Therefore, it is important to plead for all the relief you may want upfront. The party who files the bill of complaint is often referred to as the Plaintiff (or the Complainant or Petitioner) and the other spouse is referred to as the Defendant (or the Respondent).

Once the Bill of Complaint is prepared by the attorney, it is filed with the clerk of court. There is a filing fee, and once that is paid the clerk will issue "process". To issue "process" the clerk will attach a "subpoena in chancery" to the bill of complaint, and the papers will be served on the defendant (see different forms of "service of process" below). The "subpoena in chancery" is a document that advises the defendant that a divorce suit has been filed against them and that they have 21 days to file a response. This response is called an Answer. If the defendant fails to answer, then the Plaintiff can proceed with an uncontested divorce. If the defendant files an Answer, they may admit allegations, deny allegations and allege facts that will document the defendant's version of events. The defendant may also file a "Crossbill" which is a claim for affirmative relief that functions like a Bill of Complaint for the defendant. Again, in the crossbill, the defendant should be sure to plead for all forms of relief desired. The Plaintiff then has 21 days to answer the cross-bill where they will admit or deny the allegations.

There are some issues that may need to be decided at the very beginning of the case or while the divorce is pending. This relief is often referred to as "pendente lite" or temporary relief. See Virginia Code Section 20-103 for the different forms of relief. The court can temporarily grant orders regarding issues of support, custody, visitation, living arrangments of the parties pending the divorce, personal liberties and freedom from harassment, orders to preserve the marital estate, and make other orders accordingly. This relief is only temporary and if not agreed upon before the final divorce hearing, they will have to be ultimately determined by the court.

Depending on the issues that develop in a particular case, discovery may be necessary. Discovery is a process of gathering information that the other side may have for your case. Discovery can include written questions to the other side called "Interrogatories" or demands for production of certain documents, referred to as "Request for Production of Documents". Discovery normally only occurs in a contested divorce and is usually essential to fully prepare for your case. For example, issues involving equitable distribution of marital property may require a request for income information, information concerning real estate, business holdings etc. to obtain the value of the property. Although very advantageous, discovery is normally a long and expensive process.

See Virginia Code Section 20-99. The next step in the divorce proceeding is to schedule a Commissioner's hearing, court hearing or deposition. Unless the defendant signed a Waiver, they will again have to be served with notice of hearing/depositions. Every jurisdiction has different rules regarding this step. Some Courts appoint a Commissioner in Chancery to take depositions, others allow the attorney to conduct the depositions in their office, while still others require an appearance before a judge. If the divorce is uncontested, you will need to bring several things with you to your hearing/deposition: a marriage license, original separation agreement if you have one, and a witness. The Commissioner's job (or judge or attorney conducting the deposition) is to take evidence to ensure that the party is eligible for a divorce in Virginia. Your witness will need to testify, under oath, concerning how long you and your spouse have been separated, whether the separation was continuous, and many other facts needed to establish grounds for divorce. If testifying before a Commissioner, they will listen to the testimony of the moving party and their witness, and type up a report to the judge recommending whether the grounds for divorce have been proven. After this, the judge will sign off on the Final Decree of Divorce.

If the divorce is contested and all negotiations have failed, then a contested hearing will have to be scheduled before a judge or at the offices of a Commissioner in Chancery. If the hearing is before a Commissioner, all the testimony will be taken down by a court reporter and the Commissioner will file a report with the judge, making recommendations regarding the issues in the case. The parties may file exceptions to the report of the Commissioner and argue the exceptions before the judge. After this, the judge will make the final decision on the contested issues and sign the Final Divorce Decree in the matter. After the decree is signed, there is a thirty day time period to appeal; thereafter the divorce is final and unappealable.

Service is basically letting defendant spouse know that a divorce suit has been filed. There are several ways to obtain service of process on the defendant. The cheapest and quickest way to obtain service of process is to have sign an Acceptance of Service Waiver and Affidavit. The different methods for acceptance or waiver of service of process and notice are described in Virginia Code Section 20-99.1:1(A):

1) the defendant may accept service of process by signing the proof of service before any officer authorized to administer oaths;
2) any party may accept service of process upon voluntary execution of a notarized writing specifying an intent to accept any particular process;
3) any party may waive service of process upon voluntary execution of a notarized writing specifying an intent to waive any particular process. If the defendant signs the waiver, then they will not have to be served by the sheriff with the Bill of Complaint or any future notices, which will decrease the cost and time of the divorce process. If the defendant will not sign the waiver, then he/she will have to be served through the sheriff or a private process server. See Virginia Code Section 8.01-296.

The sheriff may either serve the defendant personally, or through substituted service by either posting the service on the defendant's door ("usual place of abode") or by delivering the paperwork to a family member of the defendant who is 16 years of age or older and resides in the defendant's household. If the defendant's whereabouts are unknown, then service of process may be made by publishing notice in a local newspaper. This is called an Order of Publication. When using order of publication as the form of service, the court will limit your relief to just a divorce. This means they will not decide contested issues like child custody, support, property division etc. This is because it is unlikely that the defendant actually saw the newspaper notice and does not know that the divorce action was filed. See Virginia Code Section 8.01-316 through 8.01-320.

Venue is the location where the suit can be filed. Venue in divorce actions in Virginia is in the Circuit Court of the city or county where the husband and wife last cohabited or, at the option of the plaintiff, where the defendant resides (if the defendant is a resident of Virginia). In cases where an order of publication may be used, venue is where the plaintiff resides. These venues are the "preferred venues". See Virginia Code Section 8.01-261(19).

At the time the divorce suit is filed, at least one of the parties must have been an actual bona fide resident and domiciliary of Virginia for at least six months preceding the filing of the action. The residence requirement and the domicile requirement are two separate requirements, both of which must be alleged and proven. "Domicile" means that the person intends to live in a place permanently, or at least indefinitely. Thus, a person can only have on domicile at a particular time. "Residence" means that the person has had a permanent home in Virginia for at least six months preceding the commencement of the suit. It is not necessary for the person to have been physically present in Virginia that entire time. There are special rules concerning residence and domicile of members of the United States armed forces. If a member of the armed forces has been stationed or has resided in Virginia for a period of at least six months immediately preceding the commencement of the divorce suit, then that person is presumed to be domiciled in and to have been an actual bona fide resident of Virginia. See Virginia Code Section 20-97.

Upon dissolution of a marriage, the Court may divide marital assets and debts among the parties (if the parties have not previously entered into a written Separation Agreement dividing the property themselves). This process is referred to as "equitable distribution", meaning the division should be fair and equitable. First, it will have to be determined whether the property is separate property (which generally is not subject to division by the court) or marital property that the court can divide. Separate property is property that was acquired by one party prior to the marriage or after the parties separated or as a gift or inheritance from a third party. The property should have been kept separate during the marriage. Marital property is normally all property acquired by either party during the marriage, including pensions, retirement plans etc.

To determine how to divide the marital property, the court will consider numerous factors:

1) contributions, both monetary and nonmonetary, of each party to the well-being of the family;
2) contributions, monetary and nonmonetary, of each party to the acquisition and care and maintenance of marital property;
3) duration of the marriage;
4) age and physical and mental state of the parties;
5) factors contributing to dissolution of the marriage, specifically any fault grounds of divorce;
6) debts and liabilities of each spouse;
7) how and when specific items of marital property were acquired;
8) the liquid and nonliquid character of all marital property;
9) tax consequences and any other factors the court deems necessary.

See Virginia Code Section 20-107.3.

The court will also use the above factors to apportion marital debt. Thus, it is important to keep receipts, statements etc. showing when the debt was acquired and possibly what was purchased (in case it was a nonmarital purchase). Only debt that existed on the date of separation will be divided among the parties. It is also important to note that despite a court order or written agreement for one spouse to pay a debt that is in both parties' names, the other party may still be sued by the creditor if the responsible party does not pay the debt. This is because the creditor was not a party to the agreement or litigation and their rights cannot be affected by the divorce suit. Therefore, the creditor can still sue the husband, the wife or both for the debt, unless the party files for bankruptcy. The party who was responsible to pay the debt can be taken to court by the other spouse for contempt of court (not abiding by the court order) if they have not filed for bankruptcy. In some cases, even if the responsible party files for bankruptcy, it may still be possible to enforce the agreement or court order.

Issues concerning the children are usually the most emotionally upsetting for the parties to deal with. Often times the breakdown of the marriage has lead to bitter attitudes, which are reflected in how the parties deal with visitation and other child related matters resulting from the divorce. It is common for one parent to alienate or try to turn the children against the other parent. The best way to handle these issues is for the parents to remain civil and reasonable enough to work together for the sake of the children. However, this is not always the case and the courts may have to step in to resolve conflicts over custody and/or visitation.

All child custody and visitation matters are determined by considering the "best interests" of the child. There are several forms of custody arrangements that a court can order.

1) Sole custody - this is when one person has responsibility for the care and control of the child and has primary authority to make decisions concerning the child;
2) Joint custody - this consists of different types of arrangements as follows: (i) joint legal custody where both parents retain joint responsibility for the care and control or the child and joint authority to make decisions concerning the child even though the child's primary physical residence is with only one parent (ii) joint physical custody where both parents share physical and custodial care for the child or (iii) any combination of joint legal and joint physical custody that the court deems to be in the best interest of the child;
3) Shared Custody - refers to arrangements in which the parents willingly share child care responsibilities and decisions concerning the needs of the child. For child support purposes, shared custody occurs when each parent has physical custody of a child for more than 110 days of the year;
4) Split custody - this arrangement only occurs in families that have more than one child and and is when each parent has primary or sole custody of one or more of the children.
See Virginia Code Sections 20-124.1 and 20-108.2.

Whenever the parties cannot agree on an arrangement for custody and/or visitation of a child, the court may be asked to decide the matter. Anyone with a legitimate interest can file a petition to have custody/visitation determined. In Virginia, the court must consider several factors in determining child custody/visitation and the best interest of the child. Among these factors, the court considers the age and physical and mental condition of the parties and the child; the relationship existing between each parent and each child; the needs of the child, giving due consideration to other important relationships of the child, including siblings; the role each party has played and will play in the upbringing of the child; the propensity of each parent to actively support the child's contact and relationship with the other parent; the reasonable preference of the child, if the child is deemed to be of reasonable intelligence by the court; any history of family abuse; and any other factors that the court deems necessary.
See a full list of factors at Virginia Code Section 20-124.3.

Child custody cases often involve additional participants who act in an official capacity. In some cases where there may be an issue of the home environment, the court will order home studies of each parent’s home to be conducted by a social worker. The worker will visit the home and talk to the parent and sometimes the child and write a report to the court documenting what they have observed. Also, the court may appoint a guardian ad litem to represent the interests of the children. The guardian ad litem is a lawyer whose primary responsibility is to make sure the “best interests” of the child is represented.

Things are even more complicated when one of the parents live out of state. Two laws apply to custody cases in these instances. First, at the federal level, the Parental Kidnapping Prevention Act (PKPA) establishes rules that all states must follow. It requires the states to enforce custody orders of other states and only allow them to modify another state’s decision in limited situations. Also, Virginia has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which establishes a child’s “home state” and “continuing exclusive jurisdiction”. This will basically determine whether the state has the exclusive authority to decide the custody and/or visitation issues of that child. When a couple initially separate, there is usually no custody or visitation order in effect. Therefore, it would not be wise to send the child to visit a parent in another state until there is a court order that establishes who has custody of the child. The reason for this is because the other party could keep the child and go to court in that state and be awarded custody of the child.

Once child custody/visitation has been determined, it will not be modified unless there is a substantial change in the circumstances that has taken place since the last court order and it is in the best interest of the child to make the proposed change. Courts are hesitant to change a custody arrangement unless you can show that there is something in the environment that will adversely affect the well being of the child. This is because the court believes that the stability of the child is very important. If the two homes are basically equal, then there will be no change in custody.

The non-custodial parent has the right to visit the child. A court will not normally honor any complete denial of visitation with a parent. This is not thought to be in the best interest of the child. However, in cases of abuse, neglect or if the noncustodial parent is thought to present a harm to the child in some way, the court may limit the visitation in some way. Supervised visitation is when the noncustodial parent is only allowed to visit the child with someone else around. Parties who can agree on a visitation arrangement and do not need the court to specify a schedule can ask the court to grant them reasonable visitation. However, if there is a communication problem between the parties, it may be best to have the court grant specific visitation and have it spelled out in the court order.

Parents have a legal obligation to support their children. If the child is yours biologically or through a legal adoption, then this is your duty. This obligation will continue until the child reaches the age of 19 or graduates from high school, whichever comes first. If there is any question of parentage, then a party can petition the court to have paternity established. Virginia uses statutory child support guidelines in determining the amount of child support to be paid. The formula considers each party’s gross income for the purpose of ascertaining their child support obligation. Section 20.108.2 of the Virginia Code establishes a method for computing child support and lists a table of amounts to be paid depending on the parents’ income. The judge can deviate from the guidelines, but have to give a written explanation for not following them. The Department of Child Support Enforcement is an administrative agency that can also determine and collect on child support obligations. However, the party will have to first apply for their services. They can issue administrative orders that have the same effect as a court order.

Because of the importance of supporting your children, even when a party claims to not have income, the court can impute income to them. This means the court can calculate the guidelines using an “imputed income” amount, just as if you made that amount. The court will normally impute according to how much they think you can make and this will be an incentive for the party obligated to pay child support to seek employment. Failure to pay child support is one of the few debts that you can be sent to jail for not paying. If you fail to pay child support after being ordered to pay by the court, you can be held in contempt of court. If you cannot pay your child support due to a decrease in income or any similar reason that is not through any fault of your own, then you can petition the court for a reduction in the amount of your child support obligation. However, if you voluntarily quit or reduce your hours, you are not likely to be granted a reduction.