Virginia divorce laws

Child Support

Virginia divorce laws permit courts to make decisions and orders based on relevant information submitted to them. Rulings are made in Virginia in much the same way they're made in many states; that is, only the basic facts are considered and many important factors and expenses just don't factor into the equation. Virginia family laws dictate that courts look at what you earn, what your spouse earns, how many children you have and how the children's time is divided by the two households. Largely ignored by the courts, one's expenses for housing (rent or mortgage), any extracurricular expenses for the child, and how it all impacts the parents. The courts appear to be insensitive to the non-custodial's burden of funding two homes. Despite being required to complete lengthy income and expense forms, the courts really don't take much if any of the information into account when rendering a decision. Medical insurance for the children however, is required. The state's divorce statutes specify that the higher wage earner pay for medical coverage.

Virginia divorce statutes require that support amounts be calculated on 'gross' income rather than 'net' income. This effectively transfers more money to the custodian (leaves the non-custodian with less to get by on) than if it were calculated on a net basis. Virginia is one of 29 states that calculates support in this manner.

Courts may order support to be paid retroactively to the time the petition was filed, so it's always best to pay a fair amount of child support as soon as the one parent separates from the marital home. You are advised to consult with an attorney if you are still in the marital home and are considering moving to another residence. Courts can and do consider the person leaving a home as abandoning the 'family'. The best advice is to stay in the marital home until you have spoken with a divorce attorney.

Courts may take into consideration the following factors when ordering child support:

1. Actual monetary support for other family members or former family members;
2. Arrangements regarding custody of the children;
3. Any arrangements the parents have made regarding child custody;
4. Calculating the income of a parent who has become intentionally underemployed or unemployed. The court will 'impute' an income amount.
5. Debts by either parent incurred for the child's benefit
6. Any existing payments being made such as health care, life insurance, education, child support from a third party, and other manners of income not listed here.
7. The age, physical and psychological condition of the parents and children;
8. And any other factors that the court deems appropriate

The court will have the authority to order a party to provide health care coverage for dependent children if reasonable under all the circumstances and health care coverage for a spouse or former spouse.

This state is similar to other states in their capability to enforce child support obligations. Virginia divorce statues permit the state an arsenal at its disposal. It has the ability to seize income tax refunds, garnish wages, place liens on property, suspend licenses, seize assets and attach property.

Residency

As is the case in other states, Virginia divorce statutes require residency in order for a suit for divorce to proceed. One of the parties must have resided within the Commonwealth of Virginia for at least six months.

Armed forces personnel must have resided in this Commonwealth for six months prior to having been stationed elsewhere in order for a divorce to proceed.

Upon separation of the husband and wife, the wife may establish her own and separate domicile, though the separation may have been caused under such circumstances as would entitle the wife to a divorce or annulment.

Child Custody    

The court operates under the principle of the best interests of the child. All reasonable efforts will be made to assure minor children of frequent and continuing contact with both parents and encourage parents to share in the responsibilities of raising their children.

At least outwardly, there is no presumption awarding custody to one parent in favor of the other. The court has the ability to award custody in unconventional terms (to the father) upon evidence that the best interest of the child would be served. The court may award joint custody or sole custody.

In determining best interests of a child for purposes of determining custody or visitation, the court may consider the following:

1. The age and physical and mental condition of the child
2. The age and physical and mental condition of each parent;
3. The relationship existing between each parent and each child
4. The needs of the child, giving due consideration to other important relationships of the child, including siblings, peers and extended family members;
5. The role which each parent has played and will play in the future, in the upbringing and care of the child;
6. The propensity of each parent to actively support the child's contact and relationship with the other parent. Special care is given to determine if either parent has unreasonably denied the other parent access to or visitation with the child to the other;
7. 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 and resolve disputes regarding matters affecting the child;
8. 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; Any history of family abuse.

Grounds for Divorce  

The grounds for divorce in the Commonwealth of Virginia are:

1. For adultery; or for sodomy or buggery committed outside the marriage;
2. Where either of the parties subsequent to the marriage has been convicted of a felony, sentenced to confinement for more than one year and confined for such felony subsequent to such conviction;
3. Where either party has been guilty of cruelty, caused reasonable apprehension of bodily hurt, or willfully deserted or abandoned the other
4. On the application of either party if and when the husband and wife have lived separate and apart without any cohabitation and without interruption for one year.

Mediation

Virginia courts have the ability to order parents to a dispute resolution evaluation session to be conducted by a certified mediator. Divorce recovery can be, in certain situations, be vital to moving on.

Alimony

A request for alimony (maintenance) will be considered by the court after examining the specific facts surrounding the marriage. The receiving spouse must be alive in order for an "estate" to receive alimony. Courts in Virginia are nor allowed to award alimony (or maintenance to the estate of a deceased person.

In Virginia, if a ground for divorce can be proven against the spouse seeking alimony, such alimony can be denied unless, the court determines from clear and convincing evidence that a denial of support and maintenance would constitute an injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties.

The court, in its discretion, may decree that maintenance and support of a spouse be made in periodic payments, lump sum payments, temporary alimony or any combination thereof.

Waiting Period  

Upon the expiration of either one (1) year or six (6) months, whichever is applicable, following the beginning of the action for divorce, a decree of divorce will be issued.

Grandparents Rights

Federal law allows grandparents the right to petition courts for visitation by the grandchildren. This process can take place during a divorce or as a part of a decree dissolving the marriage. It may be advisable to initiate such a petition during a adult child's divorce process rather than after the conclusion, as a separate action may require more time and expense.

Divorce Settlement

The court will determine the appropriate settlement of assets. It will determine which assets are marital assets and which are not, and upon that determination divide the marital assets in such a way as to be equitably distributed, although not necessarily distributed evenly. Valuations of properties will be made, and can be influenced by evidentiary hearings. You do have the option of coming to a settlement with your spouse, thus avoiding the court stepping in with its settlement. If it becomes necessary, the court will determine value and classify property thusly:

• Separate property is all property, real and personal, acquired by either party before the marriage;
• all property acquired during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party;
• all property acquired during the marriage in exchange for or from the proceeds of sale of separate property, provided that such property acquired during the marriage is maintained as separate property.

Did you come into this marriage owning a house? Concerned about the equity in that house that you brought into the marriage? Here's how it works generally. What you brought into the marriage is usually all yours. However, any appreciation of the house or the property value is normally treated as a "marital asset", meaning that you will likely forfeit a third to a half of that appreciation to your spouse in the divorce. Consult Virginia divorce statutes or your attorney.