Family Law FAQ

Frequently Asked Divorce & Family Law Questions

Q: What are the grounds for divorce in Virginia?

A: Under Virginia law a husband or wife may obtain a divorce on a "no-fault" or a "fault" basis. Examples of a fault grounds are adultery, cruelty and desertion. A divorce may also be granted on a no-fault grounds whether or not a fault is established.

Q: When can I file for divorce?

A: If you are seeking a divorce based on fault grounds, you can file as soon as the circumstances giving rise to the grounds exist. No-fault divorce requires that parties live entirely separate and apart for a specified period. If the parties have minor children, the required period is one year of separation. If there are no minor children and the parties have entered into a written agreement resolving all issues, a no-fault divorce may be sought after six months of separation.

Q: What is the first step in getting a divorce?

A: A divorce action begins in the Court when a document called a Complaint for Divorce is filed. The Complaint states the reasons for the divorce and describes what the party is requesting (division of property, custody of children, support, etc.). If a party is seeking a no-fault divorce, the parties must have been separated for the entire required period before the Complaint can be filed. Therefore, if parties have one or more children and/or there are property disputes between them, one year must elapse before a Complaint seeking a no-fault divorce can be filed.

Q: What happens before the divorce is finalized?

A: If the parties are unable to agree on a temporary financial or visitation situation, either party may set a pendente lite hearing. This is a hearing where limited evidence is presented in order for the Court to establish temporary orders regarding things such as child custody, visitation and support, and address other financial matters while the case is pending.

If every issue in a divorce is contested (custody, property, support, and grounds of divorce), generally at least one comprehensive hearing/trial is required at the conclusion of the litigation. At the hearing/trial, the Court determines the grounds of divorce, custody, visitation, support and division of property and debts.

Q: What is separate property?

A: Title does not necessarily determine whether property is marital. For instance, simply opening a bank account in your own name during the marriage does not make the account "separate." Separate property usually must be the direct result of funds or property acquired either before the marriage or after the separation. Under some circumstances, property may be part marital and part separate because it consists of contributions from before marriage and during the marriage.

Q: What is the alternative to going to Court?

A: Going to Court to obtain decisions on issues is time consuming, costly, and can be emotionally draining for parties. Resolving or settling issues by negotiating or mediating a case is not a sign of weakness. It does not mean that you do not believe in your position, or that you are "afraid" to go to Court. Settlement should be the result of objective consideration of the strengths and weaknesses in your case, rather than anger or fear. If you and your spouse are able to agree on any issues, you will not only reduce your legal fees, but you will also begin building momentum toward resolving other issues.

Q: What if I am afraid to be in the same home as my spouse?

A: If you are concerned that your spouse's behavior is posing a threat to the safety of you or your children, you may request that the Juvenile and Domestic Relations District Court issue a preliminary protective order against your spouse. A preliminary protective order is a temporary order that prevents the spouse from having any contact with you or other family members. This order stays in effect until a hearing can be held (usually in approximately 2 weeks). At the hearing, the court will determine whether the preliminary protective order should be dismissed, or whether a protective order should be entered. A protective order may be entered for a period of up to two years.

The protective order process can be initiated without an attorney. To obtain a preliminary protective order, simply contact the Intake Office at the Juvenile and Domestic Relations District Court in the County where you reside.

Another option is to file a complaint for divorce on the grounds of cruelty and constructive desertion. Once the complaint has been filed, a hearing can be set for the purpose of granting one of the parties possession of the marital residence. Once the order is entered, the spouse against whom the order is entered will be required to leave the marital home. The court also has the authority to enter an order prohibiting either party from harassing or bothering the other party.

Q: Is Virginia a community property state?

A: Virginia is not one of the states which has adopted community property principles.

Virginia is an Equitable Distribution state. Equitable Distribution is a method of divorcing or allocating property at divorce based upon the concept that marriage is a partnership or shared enterprise. The purpose of Virginia's statute is to fairly divide the assets acquired by the parties during the marriage taking into consideration the parties' monetary and non-monetary contributions to the acquisition and maintenance of the property and to the marriage.

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