Prepared by the Family Law Section of the
VIRGINIA STATE BAR

Given the increase in marital breakdown in our society, almost everyone has been or 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 pamphlet to provide the public with basic answers to some of the fundamental questions concerning divorce and separation under the laws of the Commonwealth of Virginia. It is our hope that this information will assist individuals in understanding some of the complications that often arise in this area of the law so that potential pitfalls may be prevented, minimized, or solved through a lawyer’s counsel and services.

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 a husband and wife 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 husband and wife agree that a marriage should end. These grounds are briefly described below.

Divorce from Bed and Board

a. Willful desertion or abandonment

Desertion or abandonment requires both the breaking off of cohabitation and an intent to desert in the mind of the offender. A mere separation by mutual consent will not be considered desertion by either spouse. 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 spouse 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 court 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 ground for divorce from the bond of matrimony.

b. Cruelty and reasonable apprehension of bodily harm

Cruelty authorizing divorce requires acts that tend to cause bodily harm and render the spouses’ living together unsafe. Mental cruelty alone is not normally a ground for divorce in Virginia. However, if the conduct is such that it affects and endangers the mental or physical health of 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 were committed, grounds will exist for a divorce from the bond of matrimony.

Divorce from the Bond of Matrimony

a. Separation divorce — the “No Fault” divorce

While grounds for divorce traditionally implied misconduct by one or the other spouse, modern divorce laws do not require “fault” grounds for a divorce to be granted. A “no fault” divorce from the bond of matrimony may be awarded upon a showing that for more than one year one of the parties intended to and the parties have continuously lived separate and apart without any cohabitation. If the husband and wife have entered into a Property Settlement or Separation Agreement and 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 when 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 “no fault” separation grounds exist, conversely a judge free to award a “no fault divorce” even if fault grounds exist.

b. 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 circumstances 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 same 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 buggery. If the guilty spouse can successfully establish any one of these defenses, then a divorce will not be awarded on these grounds. These are very fact specific and should be reviewed with an attorney.

c. Conviction of a felony

If the husband or wife has been convicted of a felony, sentenced to confinement for more than one year and is in fact confined, then the other party has grounds for a divorce from the bond of matrimony as long as he or she does not resume cohabitation with the guilty spouse after knowledge of the confinement.

Annulments

Unlike a divorce which dissolves a valid marriage, an annulment is a legal decree that a marriage is void. Annulments are granted only in limited circumstances such as a marriage entered into because 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. What property rights are created by marriage and Divorce?

Virginia statutes now provide for the “equitable” distribution of the marital property 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, 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 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. Under Virginia’s system of “equitable distribution,” the court is not required to divide the marital property 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, when determining how to divide the marital assets. 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 great change. 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. However, the court will consider the cause of separation as a factor in determining whether or not to award spousal support.

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.

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?

This is the crucial issue in most divorces. In determining the custody of minor (under eighteen) 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 marital change in circumstances after the date of the divorce.

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 receive visitation with the child. Visitation rights 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?

Normally the party receiving visitation will be called upon to contribute to the support of the minor child. This could be an obligation of the mother, the father, or both, if a third person has custody of the child. 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. Non-custodial parents who have their children for more than 90 days per year for visitation have their child support calculated using a different formula that is likely to make the support lower. 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 the husband and wife 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 interest.

A husband or wife 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, called a retainer.

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 attorneys fees are matters left to the discretion of the court.

Conclusion

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.

This article comes from the Virginia State Bar website. Updated 7/14

A divorce decree cannot and does not end your responsibility as a parent. Parents are forever. Both parents should make every attempt to play a vital part in the lives of their children, and allow one another to do so. Children need the ongoing affection, interest and concern of their parents. Children must feel that they have two parents who love them, even though they could not live happily with each other.

We hope that the information in this pamphlet will help you to help your children cope with your marriage dissolution with a minimum of hurt. The practical guidelines that follow are based on the many years of experience of judges, divorce attorneys and the counseling professions. You should be working to minimize the damage to your children in a number of ways. Here’s how:

Guidelines for Parents

1. If you think getting a divorce will mean you are fully and permanently rid of your spouse, think again! As long as you have minor children, you will always need to have a speaking relationship with their other parent. In that respect, the marriage will never be fully over, at least as long as the children are minors.
2. Remember the best parts of your marriage. Share them with your children and use them constructively.
3. Assure and re-assure your children that they are not to blame for the breakup and that they are not being rejected or abandoned. Children, especially young ones, often mistakenly feel that they have done something wrong and believe that the problems in the family are the result of their own misdeeds. Small children may feel that some action or secret wish of theirs has caused the trouble between their parents.
4. Continuing anger or bitterness toward your former partner can injure your children almost as much as the dissolution of the marriage. The feelings you show are as important as the words you use.
5. Refrain from voicing criticism of the other parent. It is difficult but absolutely necessary. For a child’s healthy development, discipline, happiness and mental well being, it is necessary to respect both parents.
6. Children have a desperate, fundamental need to see both parents as sources of moral authority, capability, and reliable strength. Trying to destroy the child’s belief in the other parent deprives that child of one of the essential elements of his or her well being.
7. Seeing a parent degraded and humiliated is deeply disturbing to a child. It inflicts long lasting damage in ways that a child — even an older one — does not fully understand.
8. Don’t make your child choose between you and the other parent. Children who take sides in the battles between their separated parents invariably come to regret it. It may take years, and may happen only in the late teens or in young adulthood, but the child almost always endures agonies of guilt. Often the child turns bitterly against the parent who allowed this to happen.
9. Placing a child in the middle, and trying to make him or her feel guilt for being fair, decent or affectionate toward the other parent, seriously damages the child’s psychological well-being and character. It is a cruel way to take advantage of one’s own child.
10. Giving a child the false belief that the child is the decision maker in matters of custody or visitation is not only unfair and cruel to the child, but a serious misrepresentation of the law. Judges will try to take the true wishes of an older child into account as one factor, but the only decision maker is the judge.
11. Try not to upset a child’s routine too abruptly. Children need a sense of continuity. It is disturbing to them if they must cope with too many changes at once. Maintain consistent parenting. Separated parents who may be giving the same children mixed signals about rules of behavior should communicate frankly and directly with each other on disciplinary issues in order to provide consistent rules and limits for the children.
12. Dissolution of a marriage often leads to financial pressures on both parents. When there is a financial crisis, the parents’ first impulse may be to keep the children from realizing it. Often, they would rather make sacrifices themselves than ask the children to do so. The atmosphere is healthier when there is frankness and when children are expected to help. Blaming the opposing party for this may be hard to resist, but it will probably land you back in court.
13. Marriage breakdown is always hard on the children. They may not always show their distress or realize at first what this will mean to them. Parents should be direct and simple in telling children what is happening and why, and in a way a child can understand and digest. This will vary with the circumstances and with each child’s age and comprehension. It seldom works to try to hush things up and make children feel they must not talk or think about what they sense is going on. Unpleasant events need explanation, which should be brief, prompt, direct and honest.
14. The story of your marriage dissolution may have to be retold after the child gets older and considers life more maturely. Though it would be unwise to present either party as a martyr, it would also be wrong to pretend there are no regrets and that dissolution is so common it hardly matters.
15. The guilt parents feel about the marriage breakdown may interfere in their disciplining the children. A child needs consistent control and direction. Over-permissiveness, or indecisive parents who leave children at the mercy of every passing whim and impulse, interfere with the children’s healthy development. Children need and want to know what is expected of them. Children feel more secure when limits are set. They are confused when grown-ups seem to permit behavior that they themselves know to be wrong and are trying to outgrow. Children need leadership and sometimes authority. Parents must be ready to say “No” when necessary.

Visitation Guidelines

Parental behavior has a great influence on the emotional adjustment of their children. This is equally true after the dissolution of a marriage. The following visitation guidelines have been found to be helpful to children in managing visitation:

1. Visitation should be pleasant not only for the children, but for both parents. Visitation should help your children maintain a good relationship with their other parent.
2. The visits should not be limited to the children’s home. Unless otherwise decreed in unusual cases, visitation means the visiting parent has the children visit in his or her home overnight. It may include trips and outings elsewhere.
3. The question is often asked, “Should the noncustodial parent take the children to the girl/boy friend’s house?” Visitation is a time for the parent and the children to be with each other; to maintain strong relationships. Having other people participate may dilute the parent–child experience during visitation. Also, it may appear to the children that the visiting parent does not have time for them, and does not care enough to give them undivided attention during a visitation.
4. Keep your visitation schedule and inform the other parent when you cannot keep an appointment. Missing a visit without notifying the other parent may be construed by the child as rejection. Dependability and punctuality in visitation are duties owed to the child and the custodial parent, and part of the rights that the custodial parent should expect to have respected. Furthermore, last-minute schedule changes for emergencies should be cheerfully agreed to and facilitated. Schedule adjustments that are agreed to by both parents well in advance for their convenience or the children’s surely make sense. But too many missed visits and schedule changes, for one parent’s convenience or unpredictable whims, will lead to bitterness and conflict that neither parent needs and that will ultimately hurt the children.
5. Both parents may need to adjust the visitation schedule from time to time according to the children’s ages, health and interests.
6. Frequently noncustodial or visiting parents ask, “Why should I visit?” thinking that continued exposure to the “losing” parent inconveniences or saddens the children. “I’m no longer needed; the custodial parent has the home and the children.” This is understandable, but wrong. The visit is one of the few times that the visiting parent has personal contact with the children, and for that reason, it should be a meaningful one for both the visiting parent and the children. Even though the parents have not been able to get along, the children still need both parents if they are to grow up in a normal way.
7. Often parents question where they should take the children on the visits and what should be planned for them in the way of amusement, particularly if they are young children. Activities may add to the pleasure of a visit, but most important of all is the visiting parent’s involvement with the children. Giving of yourself is more important than whatever material things you may give to your children. A dizzying round of too many fun activities will probably not be appreciated by the child. A massive assault of special treats and gift-giving will probably be resented by the other parent. Also, it will surely give the children the wrong idea about life and what parents are for.
8. The visit should not be used to check on the other parent. The children should not be pumped for this kind of information. They should not be used as little spies. In such a climate, the children’s perception is that the parents hate each other and these children will suffer. In their minds, if they do anything to please one parent, they may invite outright rejection by their other parent. They have already lost one parent in their minds and are fearful of losing the other. For this reason, parents should always show respect for each other.
9. Children may be left with many problems following visits, but most of them are the natural result of a highly unnatural and uncomfortable situation. Both parents should make every effort to discuss and to agree on ways to deal with these problems.
10. Both parents should strive to agree on matters pertaining to the children, especially discipline, so that one parent is not undermining the other parent’s efforts.

If You Need Help

If you decide that dissolution of the marriage is the only answer to your marital differences and that help to restore the marriage is no longer what you want or need, you may still need professional help to get on the right road. Advice from well-meaning friends and relatives, in many cases, further aggravates the situation. Friends or relatives can seldom be objective.

Professional counseling can assist you in dealing with your problems and your children’s problems at the same time. A psychologist or other counselor, with professional academic training, can offer insights drawn from the experience of counseling hundreds of parents with problems much like yours who have gone through this process before you.

If communicating with your spouse is desirable for your child’s sake, but difficult because of your marital differences, then mediation may provide the opportunity for parents to talk constructively. A certified mediator is trained to facilitate communication and assist parents to design their own co-parenting arrangements.

If you feel you need the assistance of an attorney but are concerned it will lead to litigation in Court, then Collaborative Family Law may provide the environment to negotiate your differences without the threat of litigation. In Collaborative Family Law each client retains a lawyer trained in Collaborative Law. The parties agree to work toward settlement without threatening to go to court, to share all needed information, and that neither lawyer can be involved if the parties fail to settle and go to court.

Help is available. Seek your attorney’s assistance in locating the proper professional to help you with your parenting issues.

This article comes from the Virginia State Bar website from a pamphlet which has been revised and reprinted by the Family Law Section of the Virginia State Bar from a handout obtained many years ago from Judge Jack T. Ryburn of the Los Angeles, California, Supreme Court. It has evolved in several versions over succeeding years.

For more information see the VSB Spare the Child video.