Divorce Laws in Virginia
For most people, the prospect of getting a divorce is incredibly emotional and stressful. Our clients often tell us that the unknowns surrounding what will be involved in the process, or what will happen after they are divorced, are the most anxiety-provoking parts. You will need a divorce lawyer who understands the process and the importance of communicating with you. Our divorce lawyers, from the very first consultation to the last, will focus on your individual needs and specific concerns and tailor their approach to help you address them. When you’re ready to speak to one of our divorce lawyers, schedule an appointment online or call our offices.
Filing for Divorce in Virginia
The Plaintiff (person starting the divorce) will file for divorce in Virginia using a “Complaint for Divorce”. This will be done through your local circuit court. Keep in mind that it is illegal for court officials to give legal advice, and they will strongly advise you to seek out a divorce lawyer rather than attempting to navigate this risky legal process alone.
Local Circuit Courts
How long does a divorce take?
If your case is uncontested it may still take two to six months to complete your divorce even if there are no complications. If your case is contested, a final hearing will be set at a Scheduling Conference and your case will usually take much longer than six months to complete, but likely within fifteen months of the filing date.
Grounds for Divorce in Virginia
Your Complaint for Divorce must declare the grounds of your divorce. Deciding on whether to proceed with a fault or no fault divorce is one of the most important decisions you will make regarding your divorce. Whether to allege a fault ground is a question that only you and your attorney can answer after discussing your particular situation in detail. It may be possible that your case will be able to be resolved amicably by a property settlement agreement (PSA) and proceed on an uncontested basis, and your lawyer can help you determine how to begin negotiating to reach that goal.
No Fault Divorce
The most common ground for divorce is “no-fault,” which is based on either a six-month or one-year separation occurring before you file for divorce. To be eligible for a six-month divorce, you must have entered into a written separation agreement have no minor children (either born or adopted). If there are children, or you and your spouse have not yet entered into a written agreement, you must wait the full twelve month period before you can file a no fault divorce.
In Virginia, you can file a “fault” based divorce, if supported by facts, where the plaintiff is alleging the defendant is guilty of misconduct such as:
- Desertion (Abandonment)
What is the difference between a no-fault and fault divorce?
If a spouse is found to be at fault for misconduct leading to a divorce, it may influence the judge’s decision on division of property and alimony in Virginia as grounds for the divorce are factors the court must consider. Keep in mind that proof is crucial for both filing a fault divorce and corroboration is required to prove the grounds, and the Defendant may raise defenses. Fault based divorces may be filed without any required separation period having expired, but usually a final divorce cannot be entered until the spouses have been separated for either six months or a year regardless of fault or no fault.
Divorce Proceedings in Virginia
How the divorce proceeds depends on if it is contested or uncontested.
To qualify as an uncontested divorce, all matters (property, custody, child support, and spousal support) must be agreed upon and there can be no matters left for the court to decide.
In order to file for an uncontested divorce in Virginia:
- You or your spouse must be a resident and domiciliary of Virginia for at least six months prior to filing for divorce.
- If there are no children:
- you and your spouse must be separated for a minimum of six months and must have a written property settlement agreement (PSA)*
- If there are children:
- You must be separated for at least one year before filing
*A PSA (“Property Settlement Agreement”) is a legally binding contract between you and your spouse. The agreement will resolve issues such as:
- Custody and visitation if there are children
- Child support and alimony
- Division of assets and debts
Uncontested divorces still require testimony from the Plaintiff or Defendant and an independent witness to corroborate the grounds of divorce. The witness must have personal knowledge that you and your spouse have separated and that you have remained living separate and apart for the required period of time. The testimony supporting the grounds for divorce may be done in an ore tenus hearing set through the court, or by affidavit.
In a contested divorce, there has been no separation agreement, or only a partial settlement agreement and, as a result, there are issues that need to be decided in court.
All contested divorce cases will be set for trial at a Scheduling Conference and set through the Divorce Case Tracking Program. This means that your case will be set for a Scheduling Conference for the purposes of setting trial dates and you will enter into a scheduling order that sets deadlines for your case.
When is a Divorce Final in Virginia?
If all legal requirements are met, a judge will enter the Final Order of Divorce either:
- At an ore tenus Hearing
- If a transcript is required, the final order will not be entered until the transcript of the hearing is filed with the Circuit Court, then submitted to the judge who will then enter both documents.
- Upon submission of the written affidavits and a draft final order to the clerk’s office
Are Divorce Records Public in Virginia?
In Virginia, divorce records are managed by the Department of Health, specifically the Office of Vital Records. However, these records are restricted for 50 years after the event. During this restricted period, records can only be accessed by the registrant, parents, spouse, and siblings.
Divorce records can also be found in the Circuit Court for the county where the divorce case was heard.
Divorce Mediation and Planning
Navigating the legal process of divorce can be overwhelming. You want to make sure you choose a divorce lawyer who is not only there for you in court, but who can help you with overall divorce planning. With divorce planning, our legal team will make sure have an understanding of Virginia divorce laws, how they apply to your specific circumstances, and what steps should be taken before, during, and after your divorce.
Some cases are benefited by bringing in a third party neutral to help with any negotiations necessary during your divorce. Through divorce mediation, your decisions and needs will be communicated to all involved parties efficiently to expedite agreements as painlessly as possible.
Divorce Expenses: How Much Does a Divorce in Virginia Cost?
The expenses in a divorce can vary greatly depending on many factors that can add to the complexity of the case, such as alimony issues, children, and property division. A few specific factors that are likely to increase the overall expense of your divorce are:
- Spouses with minor children
- Spouses with high net worth and complex assets or business interests
- Significant premarital property interests that have been commingled with property of the marriage
- If the divorce is based on fault
Divorce Attorney Fees
The majority of divorce expenses are attorney fees, as it is extremely risky to navigate a divorce without an experienced divorce lawyer. Attorney fees are charged at an hourly rate, so the more complex your divorce, the more time your divorce lawyer will have to dedicate to your case. Your lawyer will explain the fee structure with you in detail at your initial consultation and will provide you with a written agreement to review and sign before he/she will undertake representation. You should ask your individual lawyer any specific questions that you have at this first meeting to be sure you understand his/her fee structure. Be aware that lawyers cannot provide you with an exact estimate of what your case will cost as the time required is unknown at the outset of the case.
Other Divorce Expenses
- Court filings
- Document copying and sharing
- Child custody evaluators
- Financial analysts
- Business valuation experts
- Vocational experts
- Process servers, couriers, and research expenses
Division of Property in a Virginia Divorce
Virginia is an “equitable distribution” state, meaning the court will try to divide property and debts equitably. Courts will look at a variety of factors to determine what “equitable” means for each specific case. Our divorce lawyers are extremely knowledgeable in handling complicated distribution of property in Virginia divorce cases including:
401k and Other Retirement Savings
It is important to consult with a lawyer to determine what your legal rights and entitlements are to your spouse’s retirement savings plans. Many plans are different and many have their own requirements. Our lawyers understand the variety of plans that employer’s provide, and how those plans need to be divided in divorce proceedings. The firm’s lawyers are uniquely familiar with government plans due to the large number of government employees in the area.
The Court will determine which party is responsible for paying which bills and allocate debts of the marriage in an equitable way. The court may make decisions during the divorce as to who needs to pay the ongoing bills during the divorce proceedings, and then allocate the remaining debt at the final divorce hearing. There are many considerations to who will ultimately be responsible for which debts, and you and your attorney should discuss these early on in your divorce case as part of the divorce planning phase.
High asset divorces are usually the most complex when it comes to division of property. This is a specialty of our firm, and our divorce lawyers are equipped to navigate complicated cases with multifaceted and high value assets. It is very likely you will need to retain experts in high-asset divorce cases, and it is crucial that you consult with a lawyer early and retain these experts early on.
Are Divorce Legal Fees Tax Deductible?
Legal fees for divorce, custody, and related matters are normally not tax deductible—however, for legal advice from a divorce lawyer, or tax advice relating to alimony or spousal support, the IRS may permit a deduction. You should speak to your accountant or other tax preparer to determine whether you qualify for such a deduction.
Coping with Emotional Pain During Your Divorce
While emotional stress often occurs before separation, the point of separation tends to be the most emotionally traumatic event during the divorce process, for both the spouses and their children. If at any point you feel overwhelmed by the emotional toll of divorce, or simply need an unbiased party to vent to about your family issues, you are far from alone. Seek a professional therapist or local support group.
There are many different ways to approach a divorce case, and it is vital that you discuss the details of your individual situation with an experienced family law attorney to assure you are choosing the right path.