Divorce Attorney in Chesapeake
Basics of Divorce
While my office is located in Chesapeake, I handle divorce and family law cases in all of the Hampton Roads area. This includes Norfolk, Portsmouth, Virginia Beach, and Suffolk.
In Virginia, there are two types of divorce: Final Divorce (known in legal terminology as “divorce from the bond of matrimony”) and Partial or Qualified Divorce (known in legal terminology as “divorce from bed and board”).
Final Divorce: To get a final, complete and absolute divorce, the spouses can assert either Fault or No-Fault grounds for divorce.
No Fault Divorce: Sometimes couples simply grow apart. In situations where spouses interact amicably but no longer wish to be married, a no-fault divorce is often the best course of action. A no-fault divorce is awarded when the spouses show the court that they have intentionally and continuously lived apart for at least one year without cohabitation. If the spouses resume sexual relations or move back in together for even a short time, this restarts the clock on the separation requirement.
Note that a couple who does not have minor children can get a final, no-fault divorce in six months if they have entered into a formal Property Settlement or Separation Agreement. It is important to remember that even though a Property Settlement or Separation Agreement is a precursor to divorce, it is nonetheless binding on both parties. Do not rush into an agreement of this type just to speed up the divorce process. It is imperative that you have an attorney review a proposed Separation Agreement before you sign one.
Fault Grounds for Final Divorce:
Unfortunately, some marriages end due to bad acts by one of the spouses. In Virginia, fault grounds include adultery, cruelty/abuse (mental or physical), abandonment, buggery, and sodomy outside the marriage. These acts must be proven by clear and convincing evidence admissible in court. Suspicion that a spouse has committed one or more of these acts is not enough to obtain a fault divorce. If a party can prove that his or her spouse committed adultery, he or she can obtain an immediate divorce with no waiting period. Abandonment can either be actual (readily provable by someone having left the home) or constructive (not actually leaving the home but withdrawing from the marriage to include but not limited to moving out of the marital bedroom).
In Virginia, conviction of a felony with confinement of more than one year in prison is also a fault ground for divorce. The innocent spouse must can obtain a fault divorce in cases such as this, provided that spouse does not resume living with the guilty spouse after learning of the imprisonment.
Partial or Qualified Divorce
In a partial divorce situation, the spouses are legally separated from each other but may not remarry. Partial or Qualified Divorces are based on fault grounds including cruelty, desertion, and abandonment. A partial divorce based on any of these grounds may be filed immediately after the couple separates. If the separation lasts for more than one year, the couple can then seek a final, absolute divorce.
To prove cruelty, the abused spouse must show that he or she either suffered bodily harm or had a reasonable fear of bodily harm. Sometimes mental cruelty can be the basis for a fault divorce, but this is more difficult to prove sufficiently. Acts of cruelty are considered cumulatively by the court, but a single act of cruelty, if it is particularly vile, may be sufficient to prove cruelty as a fault ground for divorce. Even when there is provable cruelty, the couple must be separate for more than one year before a final divorce may be granted.
To obtain a divorce based on desertion or abandonment, the deserted spouse must prove that:
1) the deserting spouse intended to end the marriage by leaving;
2) the deserted spouse did not desire to end the marriage;
3) the deserted spouse did not do anything to justify the desertion.
If the desertion lasts for more than one year, the partial divorce decree may be “merged” into a final divorce decree.
Virginia law characterizes property in two general categories: separate property and marital property. Separate property includes any property acquired by a spouse before the marriage or after the separation of the spouses, as well as property acquired by inheritance or gift from a third party at any time. Marital property includes jointly-titled property and property acquired by either spouse during the marriage except by inheritance or gift.
Virginia has a system of “equitable distribution” in dividing property upon divorce. A court does not have to make an equal division of property in order for the division to be considered equitable. The court will take such factors as the relative financial circumstances of each spouse and how much each spouse contributed in monetary and non-monetary terms to the marriage into account when dividing property.
To achieve an equitable distribution, the court may:
1) require jointly-held property to be transferred to one spouse;
2) require property to be sold and sale proceeds split (not necessarily equally) between the spouses;
3) require one spouse to pay the other spouse a sum of money;
4) require property to be divided;
5) any combination of the above.
Spousal support (often called “alimony”) is awarded to protect a spouse from a severe financial impact if that spouse is less financially independent than the other spouse. The judge may determine the amount for spousal support by considering many factors including: the ages of each spouse, the earning potential of each spouse, the assets belonging to each spouse, and the duration and history of the marriage. The judge may also consider fault allegations, but the judge does not have to bar a spouse from receiving spousal support even if a fault ground is proven against that spouse.
Spousal support can be awarded in regular, recurring payments or in a lump sum. In some cases, a spouse may reserve the right to seek spousal support in the future while not pursuing spousal support at the time the divorce is granted. Spousal support may be later modified by the court if either spouse’s financial circumstances change.