Given the percentage of marriages that end in divorce, anyone could be affected in some way by a separation or
divorce. Dissolving a marriage often involves property rights and financial matters, and can raise complicated legal
problems, especially when children are involved.
The Family Law Section of the Virginia State Bar prepared this information to provide the public with basic answers
to some of the fundamental legal questions concerning divorce and separation in Virginia. We hope that this
information will help people understand some of the complications that can arise in this area of the law.
1. What are the Grounds for Divorce?
Virginia law recognizes two types of divorce: divorce from bed and board (a mensa et thoro) and a divorce
from the bond of matrimony (a vinculo matrimonii). A divorce from bed and board is a partial or qualified
divorce under which the parties are legally separated from each other but are not permitted to remarry. A
divorce from the bond of matrimony is a complete and absolute divorce. Any person granted a divorce from bed
and board may ask the court to "merge" the decree into a divorce from the bond of matrimony after at least
one year has passed from the date the parties originally separated. The law requires that "grounds" (valid
reasons for divorce prescribed by law) for divorce must exist and be proven to the court even if the parties
agree that a marriage should end. These grounds are briefly described below.
Divorce from Bed and Board
- Willful desertion or abandonment
Desertion or abandonment requires both the breaking off of cohabitation and an intent to
in the mind of the offender. A mere separation by mutual consent will not be considered
desertion. Further, if one spouse leaves because the other has committed acts that legally
amount to cruelty, then the spouse who leaves is not guilty of desertion. In fact, the
who leaves may be awarded a divorce on the ground of cruelty or constructive desertion.
If desertion grounds exist, a suit for a divorce from bed and board may be filed with the
immediately after the separation. If the desertion continues for more than one year from the
date the parties originally separated, then the desertion is sufficient to constitute a
for divorce from the bond of matrimony.
- Cruelty and reasonable apprehension of bodily harm
Cruelty authorizing divorce requires acts that tend to cause bodily harm and render the
living together unsafe. Mental cruelty alone is not normally a ground for divorce in
However, if the conduct is such that it affects and endangers the mental or physical health
the divorce-seeking spouse, it may be sufficient to establish grounds for divorce. Normally,
however, rude words alone will not suffice.
Cruelty constitutes the basis for a divorce from bed and board and can be filed immediately
after the parties separate. After one year has elapsed from the time the act(s) of cruelty
committed, grounds will exist for a divorce from the bond of matrimony.
Divorce from the Bond of Matrimony
- Separation divorce — the "No Fault" divorce
While grounds for divorce traditionally implied misconduct by one or the other spouse,
divorce laws do not require “fault” grounds for a divorce to be granted. A “no fault”
from the bond of matrimony may be awarded upon a showing that for more than one year one of
parties intended to and the parties have continuously lived separate and apart without any
cohabitation. If the parties have entered into a Property Settlement or Separation Agreement
there are no minor children, the time period is reduced from one year to six months.
Although separation provides a "faultless" ground for divorce, fault may still be an issue
spousal support (alimony) is being sought or can be a factor in determining the division of
marital property. Further, a judge is free to award a divorce on fault grounds even though
fault" separation grounds exist, conversely a judge is free to award a “no fault divorce”
if fault grounds exist.
- Adultery, sodomy, or buggery
Proving adultery is very fact-specific. The evidence must be strict, satisfactory, and
conclusive that the other spouse did in fact engage in sexual relations with another person.
While there must be some corroboration of the testimony of a spouse to prove adultery,
"eyewitness" testimony as to the adulterous acts is not required. In fact, most cases of
adultery are proven without eyewitness testimony by using other evidence of the
involved. Sodomy is a sexual act, other than intercourse, such as oral or anal sex. To be
grounds for divorce, it must be committed with someone outside the marriage. Buggery is
bestiality or a sexual act against nature. The standard of proof for these grounds is the
as that for adultery. Suspicion or speculation is not enough.
The "guilty" spouse has a number of "defenses" to the charge of adultery, sodomy, or
the guilty spouse can successfully establish any one of these defenses, then a divorce will
be awarded on these grounds. These are very fact specific and should be reviewed with an
- Conviction of a felony
If a spouse has been convicted of a felony, sentenced to confinement for more than one year,
is in fact confined, then the other party has grounds for a divorce from the bond of
as long as he or she does not resume cohabitation with the guilty spouse after knowledge of
Unlike a divorce which dissolves a valid marriage, an annulment is a legal decree that a marriage
void. Annulments are granted only in limited circumstances such as a marriage entered into
of fraud, duress, or coercion. An annulment cannot be granted merely because the marriage is of
short duration, and legal annulments are normally not granted for "religious" reasons.
2. How Are Property and Debt Divided at Divorce?
Virginia statutes now provide for the "equitable" distribution of the marital property and marital debt
between the parties at the conclusion of the divorce. "Marital property" consists of all jointly-titled
property as well as all other property, other than separate property, acquired by either or both of the
parties from the date of the marriage through the time of the final separation. "Separate property" is
property owned by one party prior to the marriage, property acquired after the parties have separated, or
inherited property and/or gifts to one party from a third person. Where "marital property" and "separate
property" are mixed together or where the value of "separate property" is increased through the active
efforts of either party during the marriage, then such property may be classified as "marital property" or
as "part marital and part separate" property. In general, debt is considered “marital debt” if it is in the
joint names of the parties and was incurred before the date of the last separation of the parties or, for
debt that is in only one party’s name, if the debt was incurred after the date of marriage and before the
date of the last separation of the parties. On the other hand, “separate debt” is debt incurred in
only one party’s name before the marriage or after the date of the final separation of the parties. In
determining whether a debt is marital or separate, the court may also consider the reason a debt was
In equitably dividing the marital estate, the courts may order monetary awards to one of the parties, divide
the property, order the property sold, or transfer jointly-titled marital property to one of the parties.
The courts may also divide responsibility for marital debts. Under Virginia's system of "equitable
distribution," the court is not required to divide the marital property or marital debts on an equal basis.
Instead, the court will consider various factors listed in the Virginia equitable distribution statute,
including the relative monetary and non-monetary contributions of each of the parties to the well- being of
the family and to the acquisition and care of the marital property. Pensions and retirement plans that were
accumulated during the course of the marriage are also subject to division by the court as part of its
equitable distribution award. However, by statute, neither party can receive more than one-half of the
amount of the other party's pension or retirement plan that accumulated during the marriage.
3. When is Spousal Support Awarded?
Given the increasing changes to both the law and society, this area of divorce law is in the process of some
revision. While a party who commits adultery is at risk of not receiving spousal support, under recent
changes in the Virginia law, the fault of a spouse in causing a divorce may no longer be a complete bar to
obtaining spousal support. The court must now consider the fault of the "guilty" spouse in the amount and
duration of the award.
Spousal support is not awarded to punish a guilty spouse. Rather, it is provided to lessen the financial
impact of divorce on the party who is less financially independent. The amount awarded for support depends
upon such factors as the respective ages of the parties, assets and earning potential of the parties, and
the duration and history of the marriage. The court may award spousal support in periodic payments and/or in
a lump. Periodic payments could be awarded for either a set number of years or an indefinite period of time.
Spousal support set by the court is subject to modification in the future upon a change in the circumstances
of either party. The court may also require maintenance of an existing life insurance policy by the spouse
who is paying spousal support under certain circumstances.
Spousal support does not have to be awarded when the divorce is granted. Instead, the parties may seek a
"reservation" of the right to seek spousal support in the future. This reservation will generally last for
one half of the length of the marriage.
4. Who Receives Custody of the Children?
his is the crucial issue in most divorces. In determining the custody of minor (under 18) children, the court
is guided by one standard: the best interest of the child. The court may award "joint legal custody" where
both parents have a role in making decisions for the child, or "sole legal custody" where one parent is
ultimately responsible for making decisions in the child's best interests. Custody will not be given to a
parent as a reward or deprived from a parent as a punishment. Rather, custody will be awarded to the parent
who is most adaptable to the task of caring for the child, and who is able to control and direct the child.
Further, custody may be changed if there is a material change in circumstances after the date of the
Factors considered by the court when awarding custody may include the age of the parent and child, the
physical and mental condition of each parent and child, the relationship existing between each parent and
each child, the needs of the child, the role played by each parent in the upbringing and caring for the
child, the home where the child will live, and the child's wishes if the child is of sufficient age,
intelligence, and maturity to make such a decision.
Another important factor to the court in establishing most custody arrangements is which parent will be the
most likely to see to it that the non-custodial parent remains a strong part of the child or children's
lives. Often the court will fashion living arrangements such that the child, at least during the school
year, will reside primarily with one parent. The other parent will have scheduled time with the child. Time
sharing between the parents will be set by the court if there is a dispute and the parents cannot
voluntarily agree upon satisfactory arrangements.
5. What are the Child Support Obligations?
Each parent is expected to contribute to the support of the minor child. Depending on the time sharing
schedule, the difference between the parties’ incomes, and other factors, there may be a child support
payment that is owed between the parents. The court is guided by the needs of the child and the ability of
the supporting parent or parents to pay. The use of the state child support guidelines provides an amount of
child support that is presumed to be correct, but the court may deviate from these guidelines in appropriate
circumstances. The award is subject to change so long as the obligation to support remains. The child
support amount may be increased or decreased if a material change occurs in the circumstances of either or
both of the parents or of the child. Depending on the time sharing schedule, the court may use a “shared
custody” guideline (where both parents have more than ninety days per year with the child) or a “sole
custody” guideline, where one parent has fewer than ninety days per year. Both guidelines take into
account the cost of work-related childcare and health insurance premiums for the child. The court may also
require a party to maintain an existing life insurance policy to provide financial security for a child in
the event that the parent obligated to pay child support dies.
The court can also apportion tax exemptions for the children between the parties.
6. What is a Property Settlement Agreement?
Rather than having the court rule upon the issues in the case, parties have the option of reaching a
voluntary agreement resolving their concerns raised in the divorce. The court will enforce the agreement
once it is in writing, signed, sworn to by both parties, and properly notarized. Oral agreements dividing
the marital property may also be enforceable, but only if they meet certain strict requirements.
A Property Settlement Agreement is a written contract between the parties that sets forth their rights,
duties, and obligations that arise out of their separation and divorce and may include such things as the
division of their property, spousal support, attorney's fees, custody of their children, and child support.
Such agreements are encouraged since they may amicably settle the rights of each spouse in the estate and
property of the other. An attorney's skill and experience can be especially helpful in negotiating and
drafting a fair, just, and reasonable Property Settlement Agreement for the parties and their children.
7. What are the Court Procedures?
Controversies over custody, child support, and spousal support are usually heard before a judge of a circuit
court. In some cases, such as where no grounds for divorce yet exist, such matters may be heard in a
juvenile and domestic relations district court, independent of the suit for divorce. Depending upon the
practices in a given locality, evidence in a divorce case may be taken in the office of an attorney
representing one of the parties, in the office of a commissioner appointed by the court to take the
evidence, or in a courtroom before a judge.
8. Are Attorneys Necessary? Who Pays the Fees?
Although an attorney is technically not required in a divorce proceeding, each spouse should obtain separate
legal counsel if there are issues in the divorce that may be contested, property rights need to be
determined, or the custody of the children is in dispute. The same attorney cannot represent both sides in a
divorce case because there will be a conflict of interests.
A party who employs an attorney should discuss with the attorney his or her fees and make satisfactory
arrangements to pay them. Quite often, a lawyer will require an initial payment made prior to the attorney
starting work, as an advance payment to be applied to fees that will be incurred as part of the
Depending on the circumstances, one spouse may be called upon to pay or contribute to the attorney fees and
court costs incurred by the other. Whether either party has to pay all or a portion of the other party's
attorney fees are matters left to the discretion of the court.
Emotional tensions in an unhappy marriage can make it difficult, if not impossible, for the average couple to deal
coolly or objectively with divorce and separation. An attorney, equipped with a specialized knowledge of the law in
divorce, custody, and related issues, can help a client be fully aware of his or her own rights and obligations in
this complex field of law.