Few things in life are as emotionally overwhelming as a divorce. Not only are you navigating the end of a relationship, but you are also dissolving a complex legal contract and making decisions that can affect you well into the future. Unfortunately, it is easy to make decisions based on emotional reactions and immediate needs rather than long-term interests during a divorce. This is when having legal advice and guidance can be critical.
Whether you are just beginning to consider divorce or are ready to file, consulting an experienced Virginia family law attorney will help ensure your rights are protected and you are making sound legal decisions for your future. The Newport News, Virginia divorce attorneys at Melone Hatley, P.C. are here to provide objective advice to help you maintain focus on your long-term financial interests and personal goals.
Understanding the Divorce Process in Virginia
Divorce laws vary from state to state. If you are considering a divorce in Virginia, you should familiarize yourself with state requirements and laws so you understand your rights and obligations and are prepared to make decisions about issues that could affect your future.
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Virginia’s Residency Requirements for Divorce
To file for divorce in Virginia, you must meet residency requirements for the state to have legal jurisdiction over your case.
To meet Virginia’s residency requirements, you or your spouse must have been a resident of Virginia for at least six months before filing for divorce. Once the residency requirement is met, your divorce can be filed in the circuit court or city where you or your spouse live.
Grounds for Divorce in Virginia
Grounds is the legally recognized reason you are seeking a divorce. Understanding grounds will be critical since the reason for your divorce will determine how you will reach a resolution and potentially affect the outcome of your case.
No-Fault Divorce
Virginia recognizes both no-fault and fault-based grounds for divorce. No-fault divorce, as the name suggests, means you are seeking a divorce without assigning blame.
The only requirement for a no-fault divorce in Virginia is a period of separation. To file for a no-fault divorce, you and your spouse must have lived separately and apart for at least one year without cohabitation. This can be reduced to six months if you have no minor children and have signed a separation agreement addressing property division, child and spousal support, child custody and visitation, and any other outstanding issues.
A no-fault divorce can be an attractive option for you if you and your spouse can settle your differences independently and cooperatively. But no-fault divorces aren’t suitable for everyone.
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Fault-Based Divorce
You may choose to pursue fault-based grounds if the breakdown of your marriage is the direct result of your spouse’s behavior or actions. Furthermore, fault-based grounds can affect the court’s decisions regarding spousal support, property division, and even child custody in some cases.
In Virginia, recognized fault-based grounds include:
- Adultery, sodomy, or buggery – Sexual acts outside the marriage are some of the most common and serious grounds for divorce in Virginia.
- Cruelty and reasonable apprehension of bodily harm – Cruelty involves a spouse inflicting physical harm on the other or causing them to live in fear of harm. It can also include tangible evidence of severe emotional and psychological abuse.
- Desertion and abandonment – Desertion occurs when one spouse leaves the home without just cause with no intention of returning, thereby abandoning the marriage. Virginia also recognizes “constructive desertion,” which occurs when one spouse’s behavior forces the other spouse to leave the marital home.
- Conviction of a felony and incarceration – When one spouse has been convicted of a felony and sentenced to more than one year of imprisonment, the other spouse has the right to file for divorce.
Fault-based grounds for divorce must be more than accusations, requiring you to provide clear and convincing evidence of your spouse’s misconduct to the court. Consequently, you will want to fully weigh the benefits and drawbacks of pursuing a fault-based divorce with your Newport News, Virginia divorce attorney to understand if it will be in your best interests.
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Contested Vs. Uncontested Divorce in Newport News, Virginia
Another important consideration will be whether your divorce will be contested or uncontested.
Uncontested Divorce
If you and your spouse can cooperate and negotiate all the terms of your divorce without court intervention to settle disputes, your divorce is considered uncontested.
The benefits of an uncontested divorce include
- Speed – Uncontested divorces generally move quicker because there is no need for court hearings or a trial.
- Cost – Because uncontested divorces don’t require litigation, court costs, and legal fees are considerably lower.
- Privacy – Details regarding financial settlements, child custody, or other sensitive information are typically not part of a final divorce decree, allowing couples who don’t litigate to keep these matters more private.
- Control – Spouses can maintain greater control over the terms of their divorce instead of relying on the court to make these decisions.
If you and your spouses can communicate and negotiate the terms of your divorce with or without the assistance of your attorneys without court intervention, an uncontested divorce may be a good option.
Contested Divorce
If you and your spouse cannot agree on one or more of the issues concerning your divorce, your case will be contested. When this happens, the court may need to intervene and make decisions on your behalf.
A divorce can be contested when critical issues cannot be resolved through negotiation or if one spouse’s behavior or demands are unreasonable. Furthermore, relying on the court’s decisions may be the best approach to ensure a fair and just outcome if your case involves abuse, deceit, or hidden assets.
Common reasons couples seek contested divorces are disputes over
- Child custody and visitation
- Child support
- Spousal support
- Division of the couple’s assets and debts
- Disputes over fault-based grounds
At any time during the process, if you and your spouse can negotiate an agreement with or without the help of your attorneys before the matter moves to court, a contested divorce can become uncontested and move forward without additional court involvement.
The Pros and Cons of an Uncontested Vs. a Contested Divorce
While an uncontested divorce can save time and money, litigation and court involvement can be critical when significant disagreements cannot be resolved through negotiation or if one spouse’s rights are at risk.
Consulting with your Newport News divorce attorney will help you evaluate your circumstances and choose the approach that best aligns with your situation and needs. Regardless of whether you decide to pursue a contested or uncontested divorce, having the skilled legal representation of a Newport News, Virginia family law attorney ensures you are considering all your options and your legal rights are being protected.
What Issues Must be Resolved to Be Awarded a Divorce in Virginia?
Many issues must be resolved in order to be awarded a divorce in Virginia. These include the fair and equitable division of your marital property, custody, parenting plans, and visitation arrangements for your minor children, the financial support of your children, and whether alimony may be warranted.
Marital Property and Debt Division
In Virginia, marital assets and debts are divided by the court using a process called equitable distribution. Unlike community property states where marital assets and debt are divided 50/50, equitable distribution considers many factors to make the division more fair considering each spouse’s situation.
Factors that are generally considered by the court when making property division decisions are
- How each spouse contributed to the marriage, including both monetary and non-monetary contributions, such as homemaking or raising the children
- The duration of the marriage, with longer marriages usually resulting in more equal splits
- The age, health, and needs of each spouse, including each party’s ability to earn an income post-divorce
- The reason for the divorce, notably if one spouse’s actions contributed to the breakdown of the marriage
- The use and treatment of marital property, such as the misuse or dissipation of marital assets leading up to the divorce
- Debts and liabilities and how they will be divided fairly
- Tax implications
If you and your spouse can reach a separation agreement or property settlement agreement outside of court, however, you can decide how to divide your marital property without the court’s intervention as long as it is fair and meets state legal standards.
Child Custody
One of the most critical aspects of divorce is determining custody and visitation arrangements for your minor children.
In Virginia, both parents are legally responsible for their child’s physical, emotional, and moral care and development. Custody can be awarded by the court jointly or solely, depending on circumstances.
Virginia Code §20-124 defines joint custody as
- Joint legal custody, where both parents retain responsibility for the care, control, and authority to make decisions concerning their child, even if the child primarily lives with one parent,
- Joint physical custody, where both parents share the physical and custodial care of the child, or
- Any combination of joint legal and physical custody which the court deems to be in the best interests of the child.
Sole custody means that one parent retains responsibility for the care and control of the child and has the primary authority to make decisions for them.
When awarding custody, it is common for Virginia courts to award primary physical custody of the child to one parent, with the other having visitation rights and joint legal custody between parents. The court will evaluate many factors in its decision, such as each parent’s relationship with the child, how involved each parent is, and the child’s physical, emotional, and educational needs. However, parents can agree to whatever custody and visitation arrangements work for them, provided they are within the framework of the law.
Virginia courts believe that both parents’ involvement in a child’s life is in their best interests, and encourage both parents to maintain active roles in their child’s life whenever possible. Consequently, sole custody awards are rare and usually limited to extreme cases of abuse or parental alienation. Even in cases of sole custody, the non-custodial parent typically has the right to reasonable visitation, which is often arranged by agreement or court order.
Child Support
Both parents also have the legal obligation to support their minor children financially. Virginia’s child support model ensures that both parents contribute to their child’s financial needs in a way that reflects their income and custody arrangements.
Virginia child support calculations are based on an income shares model. This model calculates support based on both parents’ total incomes and the costs associated with raising the child. It then divides it based on each parent’s proportionate share of the combined total.
Adjustments are then made to consider
- Childcare expenses such as work-related daycare or other care costs
- Healthcare expenses, such as medical insurance premiums, routine health care, and other healthcare needs
- Extraordinary medical or educational costs, such as tuition for private school or specialized medical care
Child support guidelines are discretionary, and the court may deviate from state child support guidelines when applying the standard would be unfair or inappropriate considering the specific circumstances of the case. Deviation from state guidelines may be considered when
- Parents are high-income, and there is a wish to preserve the child’s same standard of living
- There is a significant income disparity between parents
- There are additional children or dependents that must be supported
- There are shared or split custody arrangements
- There are other factors relevant to the child’s best interests
When the court deviates from the guidelines, it must provide written findings explaining the reasons for its deviation, ensuring transparency and adherence to the child’s best interests.
Alimony
In Virginia, alimony can be awarded to assist a lower-earning spouse in maintaining a standard of living similar to what they had while they were married. The court will consider various factors to determine whether alimony is warranted, how much should be paid, and for how long.
Types of alimony available in Virginia include
- Temporary support awarded during the divorce process to help one spouse cover immediate financial needs until the divorce is finalized
- Rehabilitative support granted for a limited time to help the lower-earning spouse become financially independent
- Permanent or indefinite support in cases of long-term marriages or when a spouse cannot become financially independent because of age, health, or other factors
- Lump sum support instead of monthly payments
When awarding alimony, the court will evaluate
- Both individual’s income and financial resources, including any assets they receive in their property division
- The couple’s standard of living while they were married
- The length of the marriage
- The age and health of both parties
- Both spouse’s financial and non-financial contributions to the marriage
- Any financial contributions one spouse made to advancing the other’s career development
- Both spouse’s potential earning capacity, considering their education, skills, and experience
- Custody responsibilities that may impact one spouse’s ability to work
- Marital fault, such as adultery or abandonment
- Potential tax implications of the support
Spouses can also reach a support agreement outside of court through negotiation or mediation. The court will generally uphold these agreements, provided they are fair and entered into voluntarily.
Getting the Skilled Legal Guidance of an Experienced Newport News, Virginia Divorce Lawyer
Divorce is a serious legal process that requires you to make important decisions that can impact your and your family’s future. Retaining skilled legal representation can be critical to protect your rights during this emotional ordeal.
At Melone Hatley, P.C., our experienced Newport News, Virginia divorce attorneys are here to protect your family, finances, and future. We are staunch advocates for you throughout the difficult divorce process, providing clear, objective, and compassionate advice and guidance. Call us at (757) 690-7779 or schedule a free consultation through our website contact form.
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