There are legal steps involved in getting divorced, and there are often complex and painful emotional processes involved in getting divorced. This page is primarily about the legal steps. There is a little advice about emotions at the end.
In most cases, one party must reside in the Commonwealth of Virginia for at least six months before either party can file for divorce in Virginia.
Legal custody is about who makes the major decisions, such as whether to send a child to private school, what religion to raise the child in, and whether to enroll a child in a sports program that might be physically dangerous or might occupy almost all of the child’s non-school time. Parents often decide to have joint legal custody. If, however, you think you and the other parent cannot cooperate in making big decisions, you may seek sole legal custody.
Physical Custody and Visitation
If the child resides with one parent almost all of the time, then that parent has sole physical custody. If the child spends more than ninety days per year with each parent, then the parents have shared physical custody. To count as a full day, a visit must last 24 hours. To count as a half day, a visit must include an overnight stay.
For the period when the parties are separated but not yet divorced, most jurisdictions now use formulas developed by Fairfax County courts. If child support is not involved, then spousal support will ordinarily be 30% of the gross income of the spouse who earns more minus 50% of the gross income of the spouse who earns less. If child support is involved, then spousal support will ordinarily be 28% of the gross income of the spouse who earns more minus 58% of the gross income of the spouse who earns less. The parties or the Court can deviate from the formula for a variety of reasons. When the divorce is finalized, many factors can influence what amount of spousal support is to be paid and for how long.
Virginia has guidelines for calculating what amount of child support is appropriate. A certified Family Mediator or a family law attorney can show you how the guidelines work and, given enough information, do the calculations for you. Parents can agree to deviate from the guideline amount if they think that is best for their child or children.
If you have property and/or debts, you or the Court must decide who gets what. If you leave it to the Court, the Court first decides what the separate property of each party is, which property is marital property, and what is hybrid property (partly marital property and partly separate property of one individual). A long list of factors can be considered in deciding what distribution of marital and hybrid property would be equitable (fair but not necessarily equal). The factors include the contributions of each party to the family and to the acquisition of property and debts, the duration of the marriage, the ages and physical and mental condition of the parties, tax consequences, dissipation of marital property for a non-marital purpose (e.g., a paramour), and other factors.
First Steps toward a No Fault Divorce
If either party wants to get divorced, he or she can usually make it happen. First, you have to tell someone other than your spouse that you have decided to separate, someone who is willing to testify later if needed. Then you have to live separate and apart from your spouse for enough months: 6 months if you have no minor children, 12 months if you have minor children. Then you can file for divorce.
Can you live separately under one roof?
Virginia law does allow for the possibility of living separate and apart under the same roof, but you must really live as if you are no longer married. Do not shop, cook, or do laundry for each other, do not eat together, do not socialize as a married couple, take off your wedding rings, change your status on your Facebook page, etc. You need a witness who visits your home very often and is willing to testify that s/he knows it well and has consistently seen evidence that you sleep in separate rooms and live your lives separately.
What do you do about custody, visitation, spousal support, and child support while you are separated but not yet divorced?
On your own or with help from a mediator and/or attorneys, you can decide how to handle each of these matters. If you reach agreement, you can simply do what you have decided to do, or you can file a petition to ask the Court to enter an Order that incorporates the terms of your agreement. If you cannot agree about how to handle things, then one party ordinarily files a petition to ask the Court to hear the evidence and decide the matter(s).
In many cases, you can save thousands of dollars by having a mediator help you and your former partner go as far as you can in mediation. The mediator’s area of expertise is facilitating communication – helping both parties say clearly what matters to them and why, hear what matters to the other person and why, consider a variety of ways to resolve their issues, and develop agreements about parenting plans and financial issues. It is a good idea for each party to get some advice from a lawyer along the way and to have a lawyer review a proposed agreement before signing it, but it may not be necessary to pay an attorney to do your negotiating for you. For parents, an additional advantage of mediation is that it is a cooperative process. It strengthens a foundation for constructive co-parenting in the future. Adversarial litigation does a lot of damage to relationships and makes it hard for the parents to cooperate in the future and raise their children well.
Some mediators are also attorneys. Others, with lower fees, are not. You can find Certified Family Mediators who are available in your jurisdiction by going to http://www.courts.state.va.us/courtadmin/aoc/djs/programs/drs/mediation/searchable_mediator_directory.html. All Certified Family Mediators have completed weeks of training programs and met mentoring requirements established by the Supreme Court of Virginia.
Uncontested, No Fault Divorce
This is the fastest and least expensive way to get divorced. Even before you separate, you can decide how the two of you are going to handle custody, visitation, spousal support, child support, and division of property and debts. Some couples decide almost everything on their own and then ask a mediator or an attorney to help them write it down in a format that the Court will find easy to use. Some have great diffficulty, perhaps because one party does not want the separation to happen, but, with help from a mediator amd advice from attorneys, can work out a plan that is acceptable to both parties. If mediation (the least expensive process) fails, then the parties can hire collaborative attorneys or separate attorneys to negotiate their Separation and/or Property Settlement Agreement.
When the parties have a signed Separation and Property Settlement Agreement, they wait for enough months to pass. Then one files for divorce, the other signs the appropriate form to say that he or she will not contest the divorce, and the Court sets a date for a hearing. Some jurisdictions require that at least one spouse and one witness show up for the hearing. Some jurisdictions allow the parties to enter testimony through depositions transcribed by a court reporter. Then, ordinarily, the Court incorporates the terms of the parties’ Agreement into an Order and declares that the parties are now divorced.
Most cases -- more than 90% in many jurisdictions -- are settled outside of Court prior to trial. If the parties cannot come to terms about one or more of the important issues, then the Court will hear the evidence and make a ruling.
Although representing yourself is allowed, both parties ordinarily hire attorneys when an issue is strongly contested. The attorneys issue Interrogatories, Requests for Production of Documents, and Subpoenas. They take Depositions and use other means to gather evidence on behalf of their clients. They ordinarily continue negotiations toward settlement while also preparing for trial. If a case goes to trial, it is not unusual for each party to pay his or her attorney $20,000 or more, sometimes much more.
Other Grounds for Divorce
- Willful desertion or abandonment
- Cruelty and reasonable apprehension of bodily harm
- Adultery, sodomy, or buggery
- Conviction of a felony, sentencing to confinement for more than one year, and actual confinement.
Some details are available at http://www.vsb.org/site/publications/divorce-in-virginia/
Virginia Family Law
Many parts of the Code are available at
Have reasonable expectations.
You are not at all likely to win on every issue. Often both parties walk away unhappy or angry about a Court’s ruling. Encourage your attorney to help you be realistic.
Keep communication open with your partner or former partner.
As long as you have minor children, you and your ex must work together. If you cannot communicate and cooperate, your children will suffer greatly.
Get professional help to deal with your emotions.
Feeling angry, hurt, and/or betrayed is normal during separation and divorce. Getting counseling to help you deal with hostility, anxiety, and/or depression can help you and your children get through this difficult time.
Encourage a positive relationship and a good amount of time with the other parent.
If you are worried about your ex with regard to mental health issues, drug/alcohol issues, or abuse or neglect of your child, seek professional advice about what to do. Otherwise, encourage your ex to be highly involved in your child’s life and help him or her have a strong, positive relationship with the child. Children with two involved, loving parents generally do better than children with only one involved parent.
Give your kids a chance.
If you and your ex fight a lot, especially if it occurs in front of the children, you cause serious damage to your kids. If you can communicate and cooperate constructively, you are likely to have resilient, happy children. Some ex-couples benefit from joint counseling about how to communicate and cooperate. For more information please visit the Colin Family Mediation website and go to the Resources page.
This site is for informational purposes only. It is not to be construed as legal advice.
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