Divorce Laws
Alimony
Spousal support (alimony) paid from one (1) spouse to the other will be determined case-by-case, using the relevant evidence brought forth to the judge.[1]
Alimony Calculator – calculators.law
Child Support
In determining the amount of child support each spouse must pay, the court will apply the guidelines found in § 20-108.2. However, in situations where the court finds adherence to the guidelines to be unjust based upon the facts of the case, they will give a justification as to why the order varies from the guidelines and list relevant evidence, including the following factors:[2]
- Custody arrangements and cost of travel for visitation purposes
- Support of other family members
- Imputed income to a voluntarily unemployed or underemployed receiving party
- Additional child care costs due to a custodial parent attending a program that will improve the parent’s earning capacity
- Debts from the marriage for the child’s benefit
- Court-ordered payments for life insurance, education expenses, and the like for the child’s benefit
- Exceptionally large capital gains (e.g., sale of home)
- Special needs of the child
- The child’s independent financial resources
- Standard of living during the marriage
- Each parent’s financial situation
- Marital property under § 20-107.3 that earns, or could earn, income
- Tax consequences
- Provisions of a marital agreement or like document that details the amount of child support
- Any other factor needed to ensure a fair payment plan
Child Support Calculator – vasupportcalc.com
Division of Property
The court will determine upon request of either party the division of property, whether the property is marital or separate, and the nature of all debts. As Virginia has adopted equitable distribution law, the court will distribute marital property and debt as they deem fair, and not necessarily equally (as in fifty-fifty). The court will take the following into account when considering the division of property and debt, the amount of any monetary award, the apportionment of debt, and the manner of payment:[3]
- Each spouse’s contributions to the family, financially and otherwise
- Each spouse’s contributions to the care and acquisition of marital property
- Duration of the marriage
- Condition and age of both parties
- Actions or inactions that lead to the divorce
- Date and time that marital property was acquired
- The manner in which marital property was acquired
- Debts and liabilities of both parties
- Whether the marital property is liquid or nonliquid
- Tax consequences of each spouse
- The spending or using of marital property for nonmarital purposes
- Any other factors necessary to arrive at an equitable decision
Grounds for Divorce
A couple may get a divorce from the bond of matrimony in Virginia on the following grounds:[4]
- Adultery, sodomy, buggery committed outside of marriage
- Bodily harm, cruelty, desertion (one (1) year waiting period following act required)
- Conviction of a felony and imprisonment for at least one (1) year, after which point the couple does not cohabitate
- Living separately for a period of one (1) year or more
- Living separately for a period of six (6) months or more when the couple has entered into a settlement agreement and has no minor children
In Virginia, there is also a process called a “divorce from bed and board” wherein the couple gets legally separated without the option of remarrying another person outside the marriage until divorce from the bond of matrimony is complete. The grounds for divorce from bed and board are cruelty, causing bodily harm, willful desertion, and abandonment.
Interim Support
Pendente lite proceedings may take place to award temporary financial support to a requesting party to be paid for the duration of the divorce action by the other spouse.[5]
Residency
No divorce will be granted unless one (1) of the parties has been a resident of Virginia for a period of at least six (6) months.[6]
Separation
Divorce Forms
There are no official court forms for divorce in Virginia; therefore, it may be difficult for residents to effectively and confidently file on their own. While it is possible to draft the below documents without the help of a legal professional, it is highly advised that both spouses seek the assistance and advice of an attorney to ensure all documents are accepted.
- Where to File – Circuit Court
- Filing Fee – ~$86-$91. (Calculator: webdev.courts.state.va.us)
- How Long Does it Take? – Minimum three (3) months.[8]
Uncontested Divorce With or Without Children:
- Cover Sheet for Filing Civil Actions
- State Vital Statistics VS-4 form (available at clerk’s office)
- Petition for Proceeding in Civil Case Without Payment of Fees or Costs
- Complaint
- Summons
- Acceptance/Waiver of Service of Process and Waiver of Future Service of Process and Notice
- Proof/Affidavit of Service
- Answer to Complaint
- Request for Ore Tenus Hearing
- Final Order of Divorce
- Property Settlement Agreement
- Affidavit
- Witness Affidavit
How to File for Divorce in Virginia (9 steps)
The below instructions are not intended as legal advice and serve only to outline the Virginia divorce process. The exact filing process and divorce forms vary from county-to-county. Couples should contact their local Circuit Court to verify the exact filing order and court documents required.
1. Qualifications and Settlement Agreement
2. Complaint
3. Filing
The plaintiff must file the complaint at the Circuit Court with a Cover Sheet for Filing Civil Actions (county-specific form may be necessary) and pay the filing fee (~$90). They can attempt to waive the filing fee and all other court costs with the Petition for Proceeding in Civil Case Without Payment of Fees or Costs (some counties may require notarization). Depending on the county, the plaintiff may also need to submit a State Vital Statistics VS-4 form at the time of filing the complaint; other counties require this later in the filing process.
4. Service on Defendant
The complaint must be served on the other spouse, the defendant. This service is usually accomplished by a sheriff or a private process server in the methods described in § 8.01-296. If the sheriff or a process server is used, the plaintiff will be required to ask the clerk upon filing the complaint to attach a copy of a summons thereto. They’ll also be required to pay a fee at the courthouse if requesting service by sheriff, and they’ll be required to locate and compensate the private server if they choose not to use law enforcement. With payment and the court documents in hand, the sheriff or process server will personally serve the papers on the defendant at their residence. If the defendant is not present, the complaint and summons will be left with a member of the household who is at least sixteen (16) years of age. Alternatively, they may post the forms on the front door and mail copies by certified mail. Proof of service (or an Affidavit of Service) will be completed by the server and filed with the court within seventy-two (72) hours.If the above service methods are not possible, service by publication can be attempted. Plaintiffs will need to contact the clerk of court at their local Circuit Court to obtain a list of accepted newspapers and to gain more information on how this type of service is carried out in their county. Generally speaking, this method is used when the defendant’s whereabouts are unknown, or they are not residing in Virginia.
If the defendant wishes, they can choose to waive the service altogether by signing the Acceptance/Waiver of Service of Process and Waiver of Future Service of Process and Notice before a notary public or court clerk. The execution of this document negates the need to hire a third party to deliver the documents and communicates to the court that the defendant does not need any notice or further documents concerning the divorce case. More often than not, this waiver will be signed in the case of an uncontested divorce.
5. Defendant’s Answer
6. Final Order of Divorce
A Final Order of Divorce will need to be drafted to reflect the information in the complaint and Property Settlement Agreement. If the defendant signed a waiver of service, they won’t need to sign the Final Order of Divorce. Depending on the county, a VS-4 form may need to be completed and filed with the Final Order of Divorce at this point also.
7. Affidavits/Deposition/Court Hearing
The manner in which uncontested divorce cases are settled varies between counties; some require a hearing before a judge, while others can be accomplished through the submission of an affidavit or evidence from a deposition. One must contact their Circuit Court to find out their local procedure.
- Affidavit
- If the case is uncontested, filed on the grounds of separation, and has a settlement agreement in place, the couple may be able to file an Affidavit instead of going to a hearing. They’ll need to affirm that they wish to get divorced, that all statements in the complaint are true, and that they have lived separately for at least one (1) year. A witness of at least eighteen (18) years of age will have to submit a Witness Affidavit as well. Both affidavits will need to be notarized then submitted to the court for review along with the settlement agreement and Final Order of Divorce.
- Deposition
- Some counties allow for evidence to be gathered by deposition at an attorney’s office. The deposition will be recorded then printed out. The written deposition, the Final Order for Divorce, and the settlement agreement will then be submitted to the court for review.
- Court Hearing
- In many counties, uncontested cases must be heard before a judge. If this is the case, the plaintiff will need to request a hearing (sometimes called an Ore Tenus Hearing) at the time of submitting their Final Order of Divorce and settlement agreement. A hearing date will be scheduled, and notice will be sent to the plaintiff. If the defendant signed the waiver of service, they will not need to attend the hearing. At the hearing, the plaintiff and a corroborating witness will be required to testify to the contents of the complaint.