Frequently Asked Questions About 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.

The State of Virginia uses a method referred to as “equitable distribution.” This means that the division of property and debts between the parties should be fair and equitable. This does not necessarily mean equal. The court has broad discretion in equitably distributing property.

Separate property is property owned by one party prior to the marriage, property acquired after the parties have separated, inherited property and/or gifts to one party from a third person.

Generally separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the martial estate if neither the property nor its income has been used for the common benefit of the parties during their marriage.

Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property.

Spousal support, also referred to as alimony, is money paid by one spouse to the other due to the payee spouse’s loss of the benefit of the payor spouse’s income due to the divorce. It is provided to lessen the financial impact of divorce on the party who is less financially independent.

Spousal support may be granted under the following circumstances:

Upon decreeing the dissolution of a marriage, although not upon decreeing an annulment of a void marriage;

In addition, spousal support does not have to be awarded when the divorce is granted. Instead, the parties may seek to reserve the right to seek spousal support in the future. The reservation will generally last for one half of the length of the marriage.

A spouse is not automatically entitled to receive spousal support upon separation or divorce. First, the court must determine that the spouse seeking support is eligible to receive it. In determining whether or not to award support, the court shall consider the circumstances and factors that contributed to the dissolution of the marriage. The court is specifically directed to consider the grounds for divorce such as: adultery, willful desertion or abandonment, cruelty or apprehension of bodily harm, and the conviction of a felony and sentence to confinement for more than one year.

Determining a claim for spousal support involves two steps:

1. The court must first determine whether either party is barred from receiving support because of adultery or another fault ground.

2. If there is no bar to an award of support, the court must weigh the relative needs and abilities of the parties, taking into consideration numerous factors.

1. The obligations, needs, and financial resources of the parties, including, but not limited to, income from all pension, profit sharing, or retirement plans of whatever nature;
2. The standard of living established during the marriage;
3. The duration of the marriage;
4. The age and physical and mental condition of the parties and any special circumstances of the family;
5. The extent to which the age, physical or mental condition, or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;
6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
7. The property interests of the parties, both real and personal, tangible and intangible;
8. The provisions made with regard to the marital property under section 20-107.3;
9. The earning capacity, including the skills, education, and training of the parties and the present employment opportunities for persons possession such earning capacity.
10. The opportunity for, ability of, and the time and costs involved fro a party to acquire the appropriate education, training, and employment to obtain the skills needed to enhance his or her earning ability;
11. The decisions regarding employment, career, economics, education, and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both parties have been absent from the job market.
12. The extent to which either party has contributed to the attainment of education, training, career position, or profession of the other party; and
13. Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

The court may order that one spouse provide support to the other during the pendancy of the divorce action and/or after the divorce has become final. Support awarded pending the final decree of divorce is not to extend beyond the period necessary for the prosecution of the divorce action.

If there is a written Separation Agreement that has been formally executed, spousal support is payable on whatever terms are set forth. When set by a court decree, it may be paid either in a lump sum, usually payable during the first full month following the entry of the decree, or in monthly installments beginning on the first day of the first month following entry of the decree.

Where it is fixed by contract, the payment of spousal support will terminate whenever the contract specifies. Where it is decreed by the court, the payment of spousal support will terminate upon the death or remarriage of the payee or where the payee enters into a “common law” marriage situation.”

Child custody refers to which parent will have legal custody of the child(ren), i.e., with whom the children will live. Visitation refers to the non-custodial parent’s ability to spend time with the child(ren).

No. When the issue is custody and/or support, you can file a petition with the Juvenile and Domestic Relations Court in the county where the child or children live.

In determining custody, the court shall give primary consideration to the best interests of the child. The court shall assure minor children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children. As between the parents, there shall be no presumption or inference of law in favor of either.

1. Sole custody. Sole custody means that one person retains responsibility for the care and control of the child and has primary authority to make decisions concerning the child.
2. Joint custody. Joint custody refers to several different types of child custody arrangements. It is defined as (1) joint legal custody where both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child even though the child’s primary residence may be with only one parent; (2) joint physical custody where both parents share physical and custodial care of the child; or (3) any combination of joint legal and joint physical custody that the court deems to be in the best interest of the child.
3. Shared custody. Shared custody refers to arrangements in which the parents willingly share child care responsibilities and decisions concerning the needs of the child.
4. Split custody. Split custody arrangements can occur only in families that have several children or more. Split custody refers to a custody arrangement in which each parent his primary or sole custody or one or more of the children.

Factors considered by the court when awarding child custody may include the following:

A custody or visitation decree is subject to modification in certain circumstances. Where a significant change in circumstances has taken place since the last court decree and a change in terms of the decree will serve the child’s best interests, a modification is warranted.

A wide variety of circumstances may lead a court to consider modification of its decree. Those circumstances include: Remarriage, divorce, and a substantial change in employment.

Child support may continue beyond a child’s 18th birthday. The court shall order that support will continue to be paid for any child over the age of 18 who is (1) a full-time high school student; (2) not self-supporting; and (3) living in the home of the party seeking or receiving child support, until such child reaches the age of 19 or graduates from high school, whichever comes first. The court may also order continuation of support for any child over the age of 18 who is (1) severely and permanently mentally or physically disabled; (2) unable to live independently and support himself or herself, and (3) resides in the home a the parent seeking or receiving child support.

Except in cases involving split custody or shared custody, a total monthly child support obligation is established by adding (1) the monthly basic child support obligation calculated from the schedule; (2) allowable extraordinary medical and dental expenses; (3) allowable health care coverage costs; and (4) allowable child care costs. The total monthly child support obligation is divided between the parents in the same proportion as their monthly gross incomes bear to their monthly combined gross income.

A party who is obligated to pay child support or spousal support under an order of the court must continue to do so unless and until the court changes or terminates that obligation. If a party is not paying support, the court can use its contempt powers to punish the party who is not paying the support and to order that the arrearage (past due support) be paid.

Yes, however a motion and an order must be filed with the court at the time the final decree is submitted for entry. The judge will endorse the order, thereby approving the resumption of your former/maiden name.

Questions are asked of you and a witness concerning the marriage and separation. Your attorney will attend and the hearing rarely runs over 15 minutes.

A judge will hear divorces in which the contested issues are custody, visitation and/or support. In divorces in which there are also contested issues of fault and/or equitable distribution, the divorce trial will be bifurcated, meaning a judge will determine custody, visitation, and support and the other contested issues will be heard by a divorce commissioner. The judge will hear testimony from each party and counsel for both parties may present witnesses, including experts. A judge’s determination on the issues of custody, visitation and support will be final.

Only in rare cases where incomes are high and there is an implied expectation.

Yes, especially if you have been married for more than 10 years and do not have a retirement plan for yourself.