Divorce Law, Child Custody, and Spousal Support
Divorce is the legal breakup of a marriage. Almost half of all U.S. marriages end in divorce. Like every major life change, divorce is stressful. It affects finances, living arrangements, household jobs, schedules and more. If the family includes children, they may be deeply affected.
It can be one of the most desparate and depressing times of anyone's life, yet it occurrs more and more frequently in society today. As a result anyone considering a divorce should consult with an attorney trained to deal with the complex issues surrounding divorce law. Ending a marriage may involve property rights and financial arrangements which can cause serious legal problems. The problems can be even more severe when children are involved.
Sometimes a marriage can be dissolved amicably, but more often than not, a divorce can turn into a very contentious battle where emotions can run very high. A cheating spouse involved in an adulterous affair can set a tone for a divorce that can be unworkable. It is important to have a divorce lawyer who can remain detached from the emotional baggage that can disrupt a divorce. Know your rights. Use this site to find an attorney who can guide you through the difficulties associated with a divorce and help you get everything you desrve.
Financial Considerations
Divorce creates many kinds of stress for all those involved. Potential exists for serious financial stress. Even when resources are adequate, and especially when they are limited, careful planning can enable individuals to make the best of their financial situation and avoid costly errors as they move forward after divorce.
As you build a new life during and after a divorce, you will find that taking control of your income and expenses will pay off financially. It also will help you build selfconfidence, feel secure, and be proud of the decisions you are making. By keeping financial stress to a minimum, you can give energy and attention to other important areas of your life.
Grounds for Divorce in Virginia
Virginia law recognizes two types of divorce: divorce from bed and board (a mensa et thoro) and a divorce from the bond of matrimony (a vinculo matrimonii). A divorce from bed and board is a partial or qualified divorce under which a husband and wife are legally separated from each other but are not permitted to remarry. A divorce from the bond of matrimony is a complete and absolute divorce. Any person granted a divorce from bed and board may ask the court to “merge” the decree into a divorce from the bond of matrimony after at least one year has passed from the date the parties originally separated.
The law requires that “grounds” (valid reasons for divorce prescribed by law) for divorce must exist and be proven to the court even if the husband and wife agree that a marriage should end. These grounds are briefly described below.
Divorce from Bed and Board
a. Willful desertion or abandonment
Desertion or abandonment requires both the breaking off of cohabitation and an intent to desert in the mind of the offender. A mere separation by mutual consent will not be considered desertion by either spouse. Further, if one spouse leaves because the other has committed acts that legally amount to cruelty, then the spouse who leaves is not guilty of desertion. In fact, the spouse who leaves may be awarded a divorce on the ground of cruelty or constructive desertion.
If desertion grounds exist, a suit for a divorce from bed and board may be filed with the court immediately after the separation. If the desertion continues for more than one year from the date the parties originally separated, then the desertion is sufficient to constitute a ground for divorce from the bond of matrimony.
b. Cruelty and reasonable apprehension of bodily harm
Cruelty authorizing divorce requires acts that tend to cause bodily harm and render the spouses' living together unsafe. Mental cruelty alone is not normally a ground for divorce in Virginia. However, if the conduct is such that it affects and endangers the mental or physical health of the divorce-seeking spouse, it may be sufficient to establish grounds for divorce.
Cruelty constitutes the basis for a divorce from bed and board and can be filed immediately after the parties separate. After one year has elapsed from the time the act(s) of cruelty were committed, grounds will exist for a divorce from the bond of matrimony.
Divorce from the Bond of Matrimony
a. Separation divorce—the “No Fault” divorce
While grounds for divorce traditionally implied misconduct by one or the other spouse, modern divorce laws do not require “fault” grounds for a divorce to be granted. A “no fault” divorce from the bond of matrimony may be awarded upon a showing that for more than one year the husband and wife both intended to and have continuously lived separate and apart without any cohabitation. If the husband and wife have entered into a Property Settlement or Separation Agreement and there are no minor children, the time period is reduced from one year to six months.
Although separation provides a “faultless” ground for divorce, fault may still be an issue when spousal support (alimony) is being sought. Further, a judge is free to award a divorce on fault grounds even though “no fault” separation grounds exist.
b. Adultery, sodomy, or buggery
Proving adultery is very fact-specific. The evidence must be strict, satisfactory and conclusive that the other spouse did in fact engage in sexual relations with another person. While there must be some corroboration of the testimony of a spouse to prove adultery, “eyewitness” testimony as to the adulterous acts is not required. In fact, most cases of adultery are proven without eyewitness testimony by using other evidence of the circumstances involved. Sodomy is a sexual act, other than intercourse, such as oral or anal sex. To be grounds for divorce, it must be committed with someone outside the marriage. Buggery is bestiality or a sexual act against nature. The standard of proof for these grounds is the same as that for adultery.
The “guilty” spouse has a number of “defenses” to the charge of adultery, sodomy or buggery. If the guilty spouse can successfully establish any one of these defenses, then a divorce will not be awarded on these grounds.
Defenses include:
* Condonation. The innocent spouse has “condoned” or legally forgiven the offending behavior by voluntarily cohabiting with the guilty spouse after learning of the adultery, sodomy or buggery.
* Procurement/Connivance. The innocent spouse has actively encouraged or facilitated the other spouse in committing the adultery, sodomy or buggery.
* Recrimination. Proof that the accusing spouse is also guilty of one of the “fault” grounds for divorce.
* Time Barred. If the adultery, sodomy or buggery occurred more than five years before bringing of the suit for divorce, then a divorce will not be granted on these grounds.
c. Conviction of a felony
If the husband or wife has been convicted of a felony, sentenced to confinement for more than one year and is in fact confined, then the other party has grounds for a divorce from the bond of matrimony as long as he or she does not resume cohabitation with the guilty spouse after knowledge of the confinement.
Annulments
Unlike a divorce which dissolves a valid marriage, an annulment is a legal decree that a marriage is void. In addition, an annulment proceeding can resolve some of the same issues that would be the subject of a divorce proceeding, such as child custody, support and alimony. Annulments are granted only in limited circumstances such as a marriage entered into because of fraud, duress or coercion. An annulment cannot be granted merely because the marriage is of short duration, and annulments are normally not granted for “religious” reasons.
Fees Associated with a Divorce in Virginia
The fees associated with the filing of a divorce case are:
- An $84.00 filing fee is required to file a complaint, and
- A $12.00 service fee if the complainant wishes to have a defendant that resides in Virginia served by the Sheriff. If the defendant does not reside in the State of Virginia, or if the complainant does not wish to have the document served by a sheriff, the complainant must make arrangements to have the documents served on the defendant. This may be accomplished by using a private process server; or if the defendant is willing to accept service, having the subpoena issued to the complainant so that the complainant may arrange for the defendant to accept service before a notary public or execute a waiver of notice. (Normally, the Clerks Office charges no service fee if the defendant is not to be served by a sheriff.)
- If the wife wishes to resume her maiden name, there will be an additional fee payable when the final decree of divorce is entered; this fee is $21.00 for up to ten pages.
All fees are payable to the Clerk of the Circuit Court by cash, check or money order. For more information, or for answers to specific questions, we suggest you review the Code of Virginia and contact a lawyer.
Winchester, VA News
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