Divorce FAQ

Questions about Divorce

What are the grounds for divorce?

No-fault divorces require a waiting period of one year and that both spouses agree to the divorce. The waiting period can be shortened to six months if there are no children and both spouses sign a marital settlement agreement. For both waiting periods, the spouses must have the intent to divorce.
Fault divorce grounds are adultery or the sexual acts of sodomy or buggery. Fear of bodily harm, willful desertion or abandonment are grounds as is a felony conviction where the spouse is sentenced and serves more than a year. Only the injured spouse can bring the fault ground.

Do I have to leave the home before the divorce starts?

Spouses do not have to leave the home to start divorce proceedings. It’s easier to prove intent to end the marriage if the spouses physically separate but Virginia recognizes that some spouses can’t afford to leave especially if there are children. If it’s clear to a non-spouse who can testify that the marriage has ended, spouses can stay in the same house and still begin divorce proceedings if they meet the waiting period requirement.

How does the divorce process work?

Divorces start when one spouse files a complaint which includes requests for all applicable family law matters such as equitable distribution, child custody and visitation and child and spousal support. The complaint hast to be served on the other spouse who then has three weeks to file an answer and make counter- requests. At a temporary hearing, a judge will issue temporary orders for the child issues and for spousal support. If both spouses agree to a resolution of their issues, they can sign a marital settlement agreement and have the court authorize it. When spouses can’t agree, the case goes before a family law judge who decides all the open issues.

Are there alternatives to litigation?

Yes. The spouses can agree on their own to all the issues. This is best done with the advice of legal counsel who will make sure everything that should be reviewed is properly considered, that the formal agreement reflects all the terms and that all the details are addressed so the spouses don’t have to run into to court for minor infractions.

There’s also a process called collaborative divorce where the spouses and their lawyers sign a Participation Agreement to try to resolve their disputes amicably and use the help of shared neutral experts. This process is often less expensive than full litigation.

Questions about the Division of the Property

How is our property divided?

Property is divided into separate assets and marital assets. Separate assets are property that each spouse owned before the marriage started and gifts and inheritances to that spouse. Separate assets are returned to the spouse after the divorce. Marital assets are all assets including the increase in value of assets acquired during the marriage up to the date of separation. Each spouse gets a percentage of the marital assets. There are 11 factors that family judges use to determine the percentage. Our firm will analyze those 11 factors and work to maximize the factors for your benefit.

How are retirement benefits handled?

Retirement benefits such as pensions, IRAs and annuities are considered marital assets if they were acquired during the marriage. A formal QDRO (qualified domestic relations order) is used to value pension benefits. The benefits are distributed when the spouse gets his/her share. The spouse who gets the retirement benefits can pay the other spouse the value of the benefits subject to the percentage adjustment to make distribution easier and faster. Social security benefits are generally not part of the equitable distribution of property.

Can I keep my home?

When children are involved, the Virginia family law courts try to help the parent who has physical custody of the children keep the family home. This can be done by giving that parent a higher percentage or by letting the parent who wants the home give up some other assets in order to keep the home. Sometimes, the marital debts such as the mortgage have to be reviewed too. When there aren’t children, then keeping the home often depends on who is in a better position to buy out the other spouse.

Questions about the Children

What’s the difference between legal and physical custody

Legal custody means which parent makes the key decisions about the child’s upbringing. This includes deciding where the child goes to school, what religion guides the child, how the child should be treated and which doctors to see if the child is hurt. One parent can have legal custody or both parents can share legal custody.

Physical custody means who controls where the child lives. Normally a child stays primarily with one parent while the other parent has visitation rights. In some cases physical custody can be shared and the child stays fairly evenly with both parents.

How is child support determined?

Virginia has guidelines that determine support. The main factors are the number of children and the income of each parent. Additional factors like unusual medical bills and school tuition bills are also considered.

Questions about Abuse

What can I do if I’m being abused?

Virginia has three different types of protective orders that protect people who are being abused by a spouse, partner or someone else. Emergency Protective Orders last up to three days and provide quick protection. Temporary Protective Orders last for 15 days or until there can be a formal hearing. The last type of order is a Permanent Order which can last up to two full years. These orders can also award the abused person the home and the vehicles. The orders also protect children.

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