Q. On what basis can one get a divorce in Virginia?
A. There are four grounds for divorce in Virginia. These are identified in Virginia Code Section 20-91. The first three are usually considered “fault” grounds and the last is considered a “no-fault” ground for divorce. The grounds are (1) adultery or sodomy and buggery outside the marriage; (2) when one party had been convicted of a felony and confined in prison for more than one year; (3) cruelty, causing reasonable apprehension of bodily hurt, desertion or abandonment; and (4) having lived separate and apart without any cohabitation and without interruption for one year.
1. Adultery: Adultery is the act of having sexual relations with someone other than your spouse. Most importantly, in order to qualify as a grounds for divorce, the adulterous conduct by one of the parties must be the reason for the disintegration of the marriage. There have been many defenses that attempt to show disintegration prior to an adulterous act. In some states, you are free to have relations after you separate. In Virginia, it is considered adultery to have sexual relations with another at any time while you are married. This is an important distinction. There is no statutory waiting period for divorces based on adultery.
Because adultery is a misdemeanor in Virginia, you must prove adultery by “clear and convincing” evidence. You do not need to catch your spouse “in the act.” It is sufficient to establish time and opportunity of circumstance as well as an inclination to act. One needs an independent witness even if your spouse admits his or her infidelity.
When confronted with adultery, one needs to address issues with a counselor and decide whether one is capable of resurrecting the marriage. One also needs to decide if it is worthwhile to pursue the divorce on these grounds from an emotional as well as financial perspective.
2. Desertion and Cruelty:
a. Desertion occurs when one spouse leaves the marital home and such leaving is not agreed upon by the remaining spouse. The party leaving must also desire the separation to be permanent. A cooling off period is not desertion, nor is a trip or a separate vacation. If both parties agree to a separation, one does not have grounds for desertion. If one alleges desertion, the alleging party must show that the leaving spouse intended the separation to be permanent and that his or her leaving was not condoned in any way by the one who remains. There is a one year statutory waiting period for divorce based on desertion. Once a divorce action is filed, it is not desertion to leave the marital home.
b. Desertion requires the concept of “clean hands.” Although a gradual breakdown in a martial relationship is not a legal justification for leaving, the person remaining must show that he or she did nothing to cause the other to leave. This does not mean that one cannot leave, only that he or she should be sure they can justify leaving.
c. Cruelty is one form of justification of leaving. It usually requires some form of physical violence or reasonable apprehension of bodily harm. Harm can be both physical and emotional. Usually one act does not trigger an ability to get a divorce based on cruelty. For one act to qualify, the act must be so bad that any reasonable person would be shocked upon hearing of it. Unfortunately, a slap does not usually reach this level of shock, but repeated slapping does. Thus, minor instances which are repeated can qualify as grounds for a divorce based on cruelty.
The Court can find that a cruel spouse is guilty of “constructive desertion” when that spouse’s acts cause the other spouse to leave the marital home to escape further acts of cruelty. The standard of proof for desertion and cruelty is a “preponderance of the evidence.”
d. Felony Conviction. Felony conviction during marriage for which your spouse is sentenced to more than l year in jail and cohabitation with your spouse is not resumed after knowledge of the confinement.
Q: What should I consider in deciding whether to file on a fault basis or a no-fault basis?
A: ”Fault” bases for divorce usually involve contested divorce actions. These are usually expensive, time consuming, and emotionally draining. They can be beneficial from a financial stand point as a judge is able to allocate marital property and assets in a way to compensate for the fault, if the fault resulted in an economic impact. A judge is also able to order the faulting party to pay the non-faulting party’s attorney fees. Fault is usually alleged as a reason to begin a divorce suit, so that one can ask the court to freeze marital property, award temporary support and custody (pendente lite relief), and to be able to seek discovery from the other side (requiring your spouse to produce documents and answer questions under oath), which cannot be done without having first filed a divorce suit. Fault is also used as “leverage” for a settlement; divorce files are public records, and the threat of finalizing a divorce on fault grounds may produce a settlement, one term of which is usually finalizing the divorce on “no fault” grounds.
“No fault” divorces also require a separation period of one year (six months if there are no minor children and there is a separation agreement). To establish grounds for being separate, the parties must provide independent evidence, to meet the standard of preponderance of the evidence, that not only are the parties not engaging in marital relations, but they are not holding themselves out to the public as a married couple. Parties may live separate and apart under the same roof.
Q: How is property divided in a divorce?
A: Property is categorized three ways in a divorce action: Marital Property, Separate Property, and Mixed Property. One of the major goals of any divorce action is to preserve property. Thus, many times, one will allege a fault ground, if such a basis exists, so that the Court can immediately make a temporary ruling with regard to the use and disposition of marital property. In deciding how to allocate property, the court is required to make an “equitable” distribution of property. Please note that “equitable” and “equal” do not mean the same thing.
1. Marital Property: Marital property is all property that is either jointly titled or acquired during the marriage other than by gift from third persons or by inheritance. This includes that portion of pensions, profit-sharing or deferred compensation or retirement plans of whatever nature, acquired by either spouse during the marriage, and before the last separation of the parties, if the separation was intended to be permanent. The Court’s powers with regard to titled property are limited. The Court may award jointly titled property to either party, or order the sale of jointly titled property and the proceeds split a certain way. However, separately titled property cannot be given to the non-title holder. Nevertheless, the Court can award monetary compensation to the non-titled owner to offset any gain in marital distribution derived from being the sole titled owner. When making a monetary award, the Court can consider the following factors as identified in Virginia Code Section 20-107.3(E):
a. The contributions, monetary and non-monetary, of each party to the well-being of the family;
b. The contributions, monetary and non-monetary, of each party in the acquisition and care and maintenance of such marital property of the parties;
c. The duration of the marriage;
d. The ages and physical and mental condition of the parties;
e. The circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce;
f . How and when specific items of such marital property were acquired;
g. The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities;
h. The liquid or non-liquid character of all marital property;
i. The tax consequences to each party; and
j. Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.
2. Separate, non-marital property: Separate, non-marital property is all property acquired before the marriage in the sole name of either party, and all property acquired during the marriage by gift from third persons or by inheritance, or with the proceeds of separate property, as long as the proceeds of such non-marital property have themselves been kept separate during the marriage. Income derived from separate property is deemed to remain separate property. The Court has no authority to order the division or transfer of separate property.
3. Mixed property: Separate property can be partially converted to marital property and is referred to as mixed property. Income from separate property can be considered martial property to the extent that it is attributable to the significant personal efforts of either party. The non-owning spouse has the burden of showing that the increase is due to his or her personal efforts. When separate and marital property are commingled, the class of property is considered transmuted to the category of property receiving the contribution unless the contributed property is retraceable by a preponderance of the evidence, and was not a gift. When separate and marital property are commingled to purchase or acquire other property, the newly acquired property shall be considered marital property unless the separate property is traceable.
Q: Can one stop a spouse from using or selling marital property while the divorce is pending?
A: Relief during the divorce process. Until the final divorce decree, the Court lacks the authority to distribute property. Although the Court may award temporary spousal and child support, as well as exclusive use of the marital home, the Court may only order an injunction denying each party the right to dispose of property until a final divorce hearing. Asset inventory is important to protect your rights with regard to property.
Q: How can I determine if I will receive spousal support?
A: Initial Award: Spousal support, both temporary and permanent in nature, is awarded in accordance with Virginia Code Sections 20-103 and 20-107.1. If someone is granted a divorce based on the fault ground of adultery, the adulterous spouse will normally not be awarded spousal support. The Court considers the following factors when deciding whether to award spousal support and the amount of such award:
1. The earning capacity, obligations, needs and financial resources of the parties, including, but not limited to, income from all pension, profit sharing or retirement plans, of whatever nature;
2. The education and training of the parties and the ability and opportunity of the parties to secure such education and training;
3. The standard of living established during the marriage;
4. The duration of the marriage;
5. The age and physical and mental condition of the parties;
6. The contributions, monetary and non-monetary, of each party to the well-being of the family;
7. The property interest of the parties, both real and personal, tangible and intangible;
8. The provisions made with regard to the marital property; and
9. Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.
Q: Is someone automatically entitled to spousal support?
A: One often is not considered entitled to spousal support, especially if they can earn a livable wage. Parties are always free to separately negotiate spousal support. If spousal support is set by an agreement of the parties instead of by the Court, the amount of spousal support can never be modified unless the parties’ agreement gives the Court the authority to do so. If the Court sets a spousal support award, either side may later petition for an increase/decrease based upon a change in circumstances. Usually spousal support is not a permanent nature if awarded by the Court. The Court may eliminate spousal support based upon clear and convincing evidence that the spouse receiving spousal support has died, remarried, or has been habitually cohabiting with another person (male or female) in a relationship analogous to marriage for one year or more. The only defense to such an elimination is to show that the parties have agreed that such support be permanent or show that the elimination would constitute a manifest injustice.
Q: How does the Court determine custody?
A: In General, custody is always based on the best interests of the child and not on the preference or interests of either party. A distinction is usually made between legal and physical custody. The Court is not obligated to award custody to either parent. However, usually, the court awards either sole custody to one parent, joint legal custody with the primary residence to one parent, or joint legal and shared physical custody, where the children spends at least 90 days per year with each parent.
1. Virginia Code Sections 20-124.2 and 20-124.3 establishes that the Court will assure frequent and continuing contact between the parties and their children and that there will be no presumption or inference of law in favor of either parent being the custodian. Section 20-124.3 sets forth those factors the Court may consider when determining the best interest of the child with regard to custody and visitation. These are:
a. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
b. The age and physical and mental condition of each parent;
c. The relationship existing between each parent and each child, giving due consideration to the possible involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
d. 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;
e. The role which each parent has played and will play in the future, in the upbringing and care of the child;
f. The propensity of each parent to actively support the child’s contact and relationship with the other parent, 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 matters affecting the child;
g. 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;
h. Any history of family abuse; and
i. Such other factors as the court deems necessary and proper to the determination.
Q: If my spouse committed adultery, will that help me get custody of our children?
A: Fault grounds for divorce play little role in custody decisions. Adultery only has an effect if a child is exposed to the paramour in a situation that suggests that the spouse and paramour are sleeping together. Cruelty can be a factor as long as the cruelty is directed toward the child or the non-cruel spouse can show that the cruel spouse is sufficiently unstable. Desertion only is a factor if the deserting spouse also is deserting the child. Any spouse who still attempts to make regular contact with his or her child after leaving should not be affected by the fault ground of desertion. Homosexuals are not normally considered qualified for custody in the State of Virginia.
Q: Can the Court order counseling?
A: Families in Transition Support Program. Virginia Code Section 20-103, authorizes a Court to order parties with a minor child to attend educational seminars on the effects of separation or divorce on minor children, parenting responsibilities, options for conflict resolution, and financial responsibilities. Any couple getting a divorce in Loudoun County will be required to attend the Families in Transition Support (“FITS”) Program, though you do not have to attend with your spouse.
Q: How is child support determined?
A: A child is entitled to the same financial support after divorce as was available prior to divorce. Both parties are responsible for child support and support is initially determined by application of Virginia Code Section 20-108.2, the state guidelines for child support. Each parent is expected to pay a pro rata share of the child support which is calculated based on the gross incomes of the parents, the costs of daycare, cost of health insurance, and costs of extraordinary medical expenses. Courts can deviate from the guidelines after first determining the guideline amount and making a determination of a need for deviation in order to correct what is perceived as a manifest injustice.
Virginia Code Section 20-108.1 allows for deviation from the guidelines based on the following factors:
1. Actual monetary support for other children or family members;
2. Arrangements regarding custody of children;
3. Imputed income to a party who is voluntarily unemployed or voluntarily underemployed except income may not be imputed to custodial parent when child is not in school, child care services are not available and the cost of such child care services are not included in the calculation;
4. Debts of either party arising during the marriage for the benefit of the child;
5. Debts incurred for the production of income;
6. Direct payments ordered by the court for health care coverage;
7. Extraordinary capital gains;
8. Age, physical and mental condition of the child;
9. Independent financial resources of the child;
10. Standard of living established during the marriage;
11. Earning capacity, obligations and needs, and financial resources of each parent;
12. Education and training of the parties;
13. Contributions (non-monetary and monetary) to the well-being of the family;
14. Provisions with regard to marital property;
15. Tax consequences to the parties regarding claims for dependent children and child care expenses;
16. Written agreement between the parties as to amount of child support;
17. Agreed pendente lite decree; and
18. Other relevant factors.
Child support is owed to any unemancipated child who is a full time high school student who has not reached the age of 19. Support is not awardable beyond the child’s 18th birthday or high school graduation, whichever is later. Further, parents cannot be forced to pay for college expenses unless agreed to in writing by the parties.
Potomac Falls Professional Center
46175 Westlake Drive, Suite 320
Potomac Falls, VA 20165