Dissolving a marriage can raise complicated legal issues that involve property rights, financial matters, and child custody. The Virginia State Bar Family Law section has prepared this pamphlet to answer some fundamental questions and provide an understanding of complications that can arise in this area of law. This information is offered to you by Richard P. Buzan, P.C. to provide you with general information about the divorce process. It is recommended that you consult with an attorney about the specific implications of this information on your situation.
It is hoped that this information will provide an understanding of complications that can arise in this area of law that may be prevented, minimized, or solved by a lawyer's counsel and services.
Due to the increase in marital breakdown in our society, almost everyone has been or could be affected in some way by divorce or separation. Dissolving a marriage usually involves property rights and financial matters and can raise complicated legal problems, especially where children are involved.
1. WHAT ARE THE GROUNDS FOR DIVORCE?
There are two types of divorce in Virginia. A bed and board decree is a partial or qualified divorce under which a husband and wife are legally separated from each other but are not permitted to marry another person. A divorce from the bond of matrimony is an absolute divorce that ends the marriage. Either party to a bed and board decree can ask the court to have that decree "merged" into a divorce from the bond of matrimony after one year from the time the separation commenced.
Even if the husband and wife agree that a marriage should be ended, "grounds" (valid reasons for divorce prescribed by law) must exist and be proved to the court. These grounds are briefly described below.
FROM BED AND BOARD
- Willful desertion or abandonment - Desertion or abandonment is a breaking off of cohabitation with an intent to desert in the mind of the offender. Both must combine to make the desertion complete. A mere separation by mutual consent is not desertion by either spouse. If one spouse leaves because the other has committed acts that legally amount to cruelty, the spouse who leaves is not guilty of desertion and, in fact, may be awarded a divorce on the ground of cruelty or constructive desertion.
A divorce from bed and board may be filed immediately after the separation if desertion grounds exist. When desertion has continued for a period of more than one year from the date of separation, it is a ground for divorce from the bond of matrimony.
- Cruelty and reasonable apprehension of bodily harm - Acts that tend to cause bodily harm and thus render living together unsafe amount to the cruelty that is grounds for divorce. Mental cruelty alone is not normally a ground for divorce in Virginia, but if the conduct is such that it affects and endangers the mental or physical health of the divorce-seeking spouse, this can amount to cruelty sufficient to establish grounds for divorce. This ground may also constitute the basis for a bed and board Bill of Complaint and can be filed immediately. When one year has elapsed from the time of the act of cruelty, grounds then exist for a divorce from the bond of matrimony.
FROM THE BOND OF MATRIMONY
- Adultery or sodomy - Proving adultery is very fact specific. As in all grounds for divorce in Virginia, there must be some corroboration of the testimony of a spouse in proving adultery, and the evidence should be strict, satisfactory and conclusive that the other spouse did in fact engage in sexual relations with another person although "eye witness" testimony to the acts is not required, in most cases circumstantial evidence may be sufficient.
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. The standard proof is the same as that for adultery.
If the guilty spouse can prove that the other has "condoned" either of these offenses by voluntarily cohabiting with the guilty spouse after knowledge of the act or that the other has been guilty of "procurement" or "connivance" by actively encouraging or making it possible for the other to commit the act, a divorce will not be awarded on this ground. In addition, if the act occurred more than five years before the bringing of the suit for divorce, the divorce will not be granted on the ground of adultery or sodomy. The Court must be convinced that the party petitioning for the divorce is the "innocent party."
- Conviction of a felony - If the husband or wife has been convicted of a felony and sentenced to confinement for more than one year and is in fact confined, the other 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.
- One year after desertion or cruelty - A divorce for desertion or cruelty may be awarded after a year has passed from the date of separation. The divorce-seeking spouse may first obtain a bed and board decree and have it merged at any time after the year's separation or directly seek a divorce from the bond of matrimony after the year has passed.
- Separation divorce - There need not be any misconduct by either spouse, but a divorce may be awarded upon a showing that the husband and wife have lived separate and apart without any cohabitation and without interruption with the intent to remain permanently separated for more than one year. Fault may still be an issue in cases where spousal support is being sought and the Judge is free to award the divorce on fault grounds even if separation ground also exist.
Where the husband and wife have entered into a Property Settlement or Separation Agreement and there are no minor children, a divorce may be awarded upon a showing that the husband and wife have lived separate and apart without any cohabitation and without interruption with the intent to remain permanently separated for six months rather than one year.
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 and support and alimony. Annulments are granted only in limited situations and cannot be granted merely because the marriage is of short duration. They are normally not granted for "religious" reasons.
2. WHAT PROPERTY RIGHTS ARE CREATED BY MARRIAGE AND DIVORCE?
Virginia statutes now provide for the "equitable" distribution of the marital property of the marriage at the time of the final divorce between the parties. "Marital Property" is defined as all jointly owned property and all other property, other than separate property, acquired by either or both of the parties during the marriage and up to the time of the final separation of the parties. "Separate Property" is property owned by one party at the time of the marriage or inherited property or gifts to one party from a third person and maintained as separate property. Where "Marital Property" and "Separate Property" are mixed together or where "Separate Property" is increased through the active efforts of either party during the marriage, then such property may be classified as "Part Marital" and "Part Separate" property.
In making its equitable distribution awards the courts are not only authorized to make monetary awards to one of the parties, but may also divide or order sold or transfer jointly owned marital property to one of the parties. The court in making its equitable distribution awards is not required to divide the marital property on an equal basis but rather, in deciding what an equitable division of marital property should be, will consider various factors listed in the Virginia Equitable Distribution Statute, including the relative monetary and non-monetary contributions of each of the parties to the well being of the family and to the acquisition and care of the marital property. Pensions and retirement plans are subject to the Virginia Equitable Distribution Statute to the extent that the same were accumulated during the course of the marriage of the parties.
3. WHEN IS SPOUSAL SUPPORT AWARDED?
Due to increasing changes in the law and in society, including changes in sexual equality, this area of the law of divorce is in the process of great change. Under recent changes in the Virginia law, the fault of a spouse in causing a divorce may not be a complete bar to obtaining spousal support, but the cause of separation will be a factor that the court will consider in determining whether or not to award spousal support. Where the grounds of divorce are adultery or sodomy and a spouse is found guilty of adultery or sodomy, said spouse will be barred from obtaining spousal support except in cases of manifest injustice. Spousal support, when awarded, may be periodic and/or in a lump sum, the amount of which depends upon such factors as the respective ages, assets and earning potential of the parties and the duration and history during the marriage. Spouse support is not awarded to punish a guilty spouse but rather is to lessen the financial impact of divorce on the other spouse.
4. WHO RECEIVES CUSTODY OF THE CHILDREN?
This is the most crucial issue in most divorces. In determining the custody of minor (under eighteen) children, the court is guided by one standard--the best interests of the child. Custody will not be given to a parent as a reward or as punishment to the guilty parent but rather to the one most adaptable to the task of caring for the child and able to control and direct the child.
Other factors considered may include the age of the parent and child, the physical and mental condition of the parent and child, the relationship existing between each parent and each child, the needs of the child, the role played by each parent in the upbringing and caring for the child, the home where the child will live and the child's wishes if the child is of sufficient age, intelligence and maturity to make such a decision. Custody may be changed if there is a marital change in circumstances.
Visitation rights will normally be set by the court if the parents cannot voluntarily agree upon satisfactory arrangements. An important factor to the court in most custody cases is which parent will be the most likely to see to it that the non-custodial parent remains a strong part of the child or children's lives.
5. WHAT ARE THE CHILD SUPPORT OBLIGATIONS?
Normally the party not having custody will be called upon to contribute to the support of the minor child. This could be an obligation of the mother as well as the father, or both, if a third person has custody of the child. The court is guided by the needs of the child and the ability of the supporting parent or parents to pay. The use of the state Child Support Guidelines provide an amount of child support that is presumed to be correct, but the court may deviate from these guidelines in appropriate circumstances. The award is subject to change so long as the obligation to support remains. It may be increased or decreased if a material change occurs in the circumstances of either or both of the parents of the child. Non-custodial parents who have their children for more than 110 days per year for visitation have their child support calculated using a different formula that is likely to make that support lower.
6. WHAT IS A PROPERTY SETTLEMENT AGREEMENT?
It is a written contract between the parties that sets forth their rights, duties and obligations that arise out of their separation and divorce and may include such things as the division of their property, spousal support, attorney's fees, custody of their children and child support. Such agreements are encouraged since they may amicably settle the rights of the husband and wife in the estate and property of the other. An attorney's skill and experience can be especially helpful in negotiating and drafting a fair, just, and reasonable agreement for the parties and their children.
7. WHAT ARE THE COURT PROCEDURES?
Depending upon the practices in a given locality, evidence in the divorce case may be taken in the office of an attorney representing one of the parties, or in the office of a commissioner appointed by the court to take the evidence, or in a courtroom before a judge. Controversies over custody, child support and spousal support are usually heard before a judge of a Circuit Court or of the experimental Family Court where the divorce suit is brought. In some cases such matters may be heard in a Juvenile and Domestic Relations District Court, independent of the suit for divorce.
8. ARE ATTORNEYS NECESSARY? WHO PAYS THE FEES?
Although an attorney is technically not required in a divorce proceeding, each spouse should obtain separate legal counsel if there are issues in the divorce that may be contested and property rights to be determined. The same attorney cannot represent both sides in a divorce case since there will be a conflict of interest.
A husband or wife who employs an attorney should discuss with the attorney the fees and make satisfactory arrangements to pay them.
Depending on the circumstances, one spouse may be called upon to pay or contribute to the attorney fees and court costs incurred by the other.
Emotional tensions in an unhappy marriage can make it difficult, if not impossible, for the average couple to deal coolly or objectively with divorce and separation. The attorney, equipped with a broad background in counseling and negotiations, as well as a specialized knowledge of the law, can help a client be fully aware of his or her own rights and obligations in this complex field of law.
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