Divorce

GROUNDS FOR DIVORCE IN VIRGINIA

To obtain a divorce in Virginia, a party may file for and can be granted divorce based on one of the following grounds: 
  • No Fault: The parties must be living separate and apart without any cohabitation and without interruption for one year prior to the date of filing for divorce. If there are no minor children and the parties have entered into a settlement agreement, then the required period of separation is only six months.
  • Fault: Adultery, Cruelty, Desertion, and Conviction of a Felony. 

GROUNDS FOR DIVORCE IN THE DISTRICT OF COLUMBIA 

To obtain a divorce in the District of Columbia, a party may file for a divorce based upon a six month separation, if both parties agree, or if the parties disagree, then a one year separation. There are no fault grounds in the District of Columbia. 

PROPERTY SETTLEMENT AGREEMENTS

The divorce process can be facilitated if the parties resolve issues through a Property Settlement Agreement (PSA). 
Working out issues through a Separation or Property Settlement Agreement can settle marital issues quicker, more amicably, and with less expense than going to court. However, if litigation in the courts is in your best interest you should be fully prepared to proceed through the courts. 

Equitable Distribution - In this process the Court identifies the separate property of the parties as well as all of the marital assets and debts, and apportions them between the parties. Consideration must be given to all assets including:
  • Real Property
  • Personal Property 
  • Pensions and Retirement 

DETERMINATION OF CUSTODY AND VISITATION.

 One of the most important aspects of divorce is determining the needs of the minor children and then crafting custody and visitation for non-custodial parents to meet their needs. (We strongly urge our clients to co-parent through a co-parenting plan.)
 
Determination of Support Payments including both Child Support and Spousal Support.
  • Who will pay support and how much and for how long. 
  • Income tax consequences of separation and divorce. 
  • Modification of support after the divorce. 
  • Who is responsible for insurance, such as medical and life. 

TERMS USED IN DOMESTIC RELATIONS CASES ARE:

  • Alimony, Spousal Support and Maintenance: Funds which are awarded in a divorce case based upon that party's need for support and maintenance and the opposing party's ability to pay. Alimony can be awarded to either party based upon the parties' respective incomes.
  • Answer: The document which is filed by the Defendant in a divorce case in response to the allegations set out in the Plaintiff's allegations. 
  • Child Support and Maintenance: Funds paid for the support and maintenance of minor children born or adopted during a marriage. In Virginia, children are considered minors and child support must be paid as long as the child for whom the support is being paid is living with the parent requesting the support and is under age of 18, unless the child is 18 is also (i) a full-time high school student; (ii) not self-supporting; and (iii) living in the home of the parent seeking or receiving child support. In that event, child support must be paid until the child reaches the age of 19 or graduates from high school, whichever occurs first. As with alimony, child support is based upon statutory guidelines set out in Virginia Code which are based upon the parties' respective incomes. In the District of Columbia support is paid until a child reaches age 21. 
  • Complaint: The first document which is filed in a divorce case which sets out pertinent information concerning the parties, any children born or adopted during the marriage, the allegations for the grounds for divorce, and the relief requested. 
  • Date of Separation: The earliest date at which the parties are physically separated and at least one party intends such separation to be permanent provided the separation is continuous thereafter. 
  • Defendant: The opposing party in the Court case who is being proceeded against. 
  • Discovery: Request made by either party in a divorce case for information or documents pertaining to any of the issues in the case (i.e., ground for divorce, custody, support, equitable distribution). Discovery can be in several forms: (1) Interrogatories, which are written questions to be answered by the other party in writing and under oath; (2) Request for Production of Documents, which is a written request for pertinent documents in the other party's possession and control to be produced; (3) Admissions, which are written statements/allegations to be either admitted or denied by the other party in writing; and (4) Depositions, which is the taking of oral testimony under oath concerning the issues in the case. Depositions take place outside the courtroom in the presence of counsel for each of the parties and a court reporter.
  • Divorce Based Upon Fault Grounds: Divorce which is sought and granted based upon fault grounds such as desertion, adultery, cruelty, and verbal/physical abuse.
  • Divorce Deposition: In Virginia it is an informal deposition (permitted in most, but not all counties) conducted at the office of the moving party's counsel, only in uncontested/no-fault divorce cases when all of the outstanding issues have been resolved and a Property Settlement Agreement has been signed by the parties. The moving party and a witness are asked questions by the attorney concerning the grounds for the divorce and their testimonies are tape recorded and then transcribed to be submitted to the Court. In the District of Columbia it is a hearing in Court before a judge, to hear only the divorce and all outstanding issues have been settled. 
  • Equitable Distribution: The Trial at which the Court determines the parties' respective interest in the marital property; divides the marital property; and determines what is separate property when the parties are unable to do so. It does not necessarily mean an equal (50%/50%) division of the marital property.
  • Factors and Circumstances: The events leading to the break-up of the marriage (i.e. desertion, adultery, cruelty, verbal/physical abuse) to be presented to the Court for consideration at the time of equitable distribution. These events are usually only important in a contested divorce case when the parties have been unable to reach a settlement of the financial and property rights, and even then usually only when the events had a detrimental financial impact on the marital assets.
  • Final Decree of Divorce: The final Order which is signed by a Judge and which dissolves and terminates the marriage between the parties.
  • Joint Custody: This can be joint legal custody, where both parents, or other interested party, retain joint responsibility for the care and control of the child(ren) and joint authority to make decisions concerning the child(ren) even though the child(ren)'s primary residence may be with only one parent; or joint physical custody where both parents share physical and custodial care of the child(ren); or any combination of joint legal and joint physical custody which the Court deems to be in the best interests of the child(ren).
  • Marital Property: In Virginia, property which was acquired from the date of marriage up to the date of separation. In the District of Columbia, property which was acquired from the date of marriage up to the date of divorce.
  • Mediation: A process of dispute resolution required by some Courts in an attempt to resolve custody and visitation issues between parties with the assistance of a Court approved and Court appointed Mediator prior to litigating those issues. In the event Mediation is unsuccessful and the dispute(s) is not resolved, the court will hear the issue(s) and make a determination.
  • Motion: A document filed with the Court and sent to the opposing party or their counsel which requests the Court to make a ruling on an issue. 
  • No Fault Divorce: Divorce which is sought and granted based upon a voluntary, statutory period of separation. 
  • Notice: A document filed with the Court and sent to the opposing party or their counsel to notify them of a Motion which has been filed and a Court date when the Motion will be heard.
  • Order: A document signed by a Judge outlining a determination or ruling which has been made on a disputed issue.
  • Ore Tenus Divorce Hearing: A hearing for uncontested/no-fault divorce cases to present evidence of a statutory period of separation. These hearings are held in a courtroom where the moving party and a witness present testimony to a Judge.
  • Pendente Lite Order: A document signed by a Judge outlining a temporary determination on an issue in a divorce case. These Orders remain in effect until all matters in the case can be heard and determined by the Court, or until the parties reach a settlement. 
  • Persons with a Legitimate Interest: This includes, but is not limited to, grandparents, stepparents, former stepparents, blood relatives and family members, provided any such party has intervened in the suit or is otherwise properly before the Court. All such persons are legally entitled to request the Court for specific visitation with the child(ren) beyond the visitation of each of the parents 
  • Praecipe: A document filed with the Court and sent to the opposing counsel which requests the Clerk to take some type of action in the divorce case (i.e., setting the case on the docket, issuing a witness subpoena or subpoena requesting documents, etc.). 
  • Property Settlement Agreement (PSA): A written contract, signed by both parties and notarized, through which the parties mutually agree to a division of the marital assets and the issues in a divorce case (i.e., custody, visitation, child support, spousal support, responsibility for debts, health/life insurance, tax matters, etc.). Such Agreements are made a part of any Final Decree of Divorce and, as such, become an Order of the Court and are enforceable by the Court. 
  • Rule to Show Cause: A document requesting the Court to hold the opposing party in contempt of a Court Order for failure to comply with a ruling made by the Court or failure to comply with a written Agreement which has been made an Order of the Court (i.e., a Property Settlement Agreement). 
  • Separate Property: Property which was acquired by one party or the other prior to the marriage, after the date of separation, or during the marriage as an inheritance. (Gifts from spouses, wedding gifts, etc. do not fall into this category.)
  • Shared Custody: Custody in which the parents share the parenting/visitation of their children fifty-fifty (50-50) or a substantial time to each parent. 
  • Sole Custody: One parent, or other interested party, retains responsibility for the care and control of the child(ren) and has primary authority to make decisions concerning the child(ren)'s health, education and welfare. 

Non-divorce aspects of Family Law include:

  • Premarital Agreements 
  • Marital Agreements 
  • Adoptions
  • Change of Name 
  • Wills and Estate Administration
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