Divorce
Divorce is one of the most significant legal decisions you will ever face. Whether you and your spouse have agreed to end your marriage or you are dealing with a contested situation, understanding how Virginia law applies to your case is the first step toward protecting your rights and your future.
As a Stafford, Virginia divorce attorney, Miles Franklin works directly with clients throughout the divorce process, from filing to final decree. Every case receives personal attention because every family’s circumstances are different.
Grounds for Divorce in Virginia
Virginia recognizes both fault-based and no-fault grounds for divorce under Virginia Code § 20-91.
Fault-Based Grounds
A fault-based divorce means one spouse is alleging specific misconduct by the other. Virginia recognizes the following fault grounds:
- Adultery: A divorce based on adultery can be pursued immediately without a waiting period. However, Virginia requires proof by “clear and convincing evidence,” which is a higher standard than most civil cases. If proven, adultery can significantly impact spousal support and property division.
- Cruelty: This requires proof of a spouse’s “cruelty or reasonable apprehension of bodily hurt.” Physical violence qualifies, and in some circumstances, verbal abuse may also meet this standard. A one-year waiting period applies from the date of the last act of cruelty.
- Desertion: Desertion applies when a spouse voluntarily breaks off cohabitation or refuses to fulfill marital duties without justification. The divorce cannot be filed until one year after the proven start date of the desertion.
- Felony Conviction: If a spouse is convicted of a felony after the marriage and sentenced to confinement for more than one year, and the spouses do not resume cohabitation after knowledge of the confinement, this serves as grounds for divorce.
No-Fault Divorce (Separation)
Most divorces in Virginia are filed on no-fault grounds based on a period of separation. Under Virginia Code § 20-91(A)(9), you may file for a no-fault divorce if:
- You and your spouse have lived separate and apart for at least one year, or
- You have lived separate and apart for at least six months if you have no minor children and have a written separation agreement
“Separate and apart” means living in different residences. Virginia does not have a formal legal separation process like some states. Instead, the separation period begins when one spouse moves out with the intent to end the marriage.
A divorce can be filed on multiple grounds, and there is flexibility to modify a divorce complaint to add or remove grounds as your case develops.
Contested vs. Uncontested Divorce
The path your divorce takes depends largely on whether you and your spouse can reach agreement on the major issues.
An uncontested divorce means both spouses agree on all terms, including property division, spousal support, and custody arrangements. These cases are typically faster, less expensive, and less stressful. If you meet the separation requirements and have a signed separation agreement, an uncontested divorce can often be finalized without a full trial. Learn more about what is needed to file an uncontested divorce in Virginia.
A contested divorce means the spouses disagree on one or more issues. Contested cases require court hearings, and in some situations, a full trial where a judge decides the disputed matters. Even in contested cases, many issues can be resolved through negotiation or mediation before trial.
The Divorce Process in Stafford County
To file for divorce in Virginia, at least one spouse must have been a resident of the Commonwealth for at least six months before filing, as required by Virginia Code § 20-97. For Stafford County residents, divorce cases are filed in the Stafford County Circuit Court.
The general process involves these steps:
- Filing the Complaint: The divorce begins when one spouse (the plaintiff) files a Complaint for Divorce with the circuit court. The complaint identifies the grounds for divorce and the relief requested.
- Serving the Other Spouse: The other spouse (the defendant) must be formally served with the complaint. Failing to respond to a divorce complaint within the required time frame can result in a default judgment.
- Discovery and Negotiation: Both sides exchange financial information and negotiate on disputed issues. This is often the longest phase of a contested divorce.
- Mediation or Trial: If the spouses cannot reach a full agreement, the court may order mediation. If mediation does not resolve all issues, the case proceeds to trial.
- Final Decree: The judge enters the final decree of divorce, which officially ends the marriage and addresses property division, support, and custody.
Property Division: Equitable Distribution
Virginia is an equitable distribution state, meaning marital property is divided fairly, though not necessarily equally. Under Virginia Code § 20-107.3, the court considers several factors when dividing property, including:
- Each spouse’s monetary and nonmonetary contributions to the family
- The length of the marriage
- The age and health of each spouse
- How and when specific property was acquired
- Any debts and liabilities of each spouse
- Tax consequences of the proposed division
The court must first classify property as marital, separate, or hybrid before dividing it. Marital property generally includes assets acquired during the marriage, while separate property includes assets owned before the marriage or received as gifts or inheritances.
Common property division issues include determining how to handle the family home (partition vs. selling), dividing retirement accounts, and addressing situations where one spouse tries to drain joint accounts before the divorce is finalized.
Spousal Support
Spousal support (sometimes called alimony) is not automatic in Virginia. The court decides whether to award support and in what amount based on 13 factors outlined in Virginia Code § 20-107.1. Key factors include:
- The financial needs and resources of each spouse
- The standard of living established during the marriage
- The length of the marriage
- Each spouse’s earning capacity and employment history
- Contributions one spouse made to the other’s education or career
- The circumstances that led to the divorce, including any fault grounds
Support can be awarded as temporary (during the divorce proceedings), rehabilitative (for a set period to allow a spouse to become self-supporting), or permanent (in longer marriages where one spouse cannot reasonably become self-sufficient). Learn more about the factors Virginia courts consider when awarding spousal support.
Children and Custody During Divorce
When minor children are involved, custody and visitation become central issues in a divorce. Virginia courts make custody decisions based on the best interests of the child, considering factors such as each parent’s relationship with the child, the child’s age and needs, and each parent’s ability to provide a stable home.
Custody arrangements can include sole custody (one parent has primary decision-making authority) or joint custody (both parents share decision-making). The court may also issue temporary custody orders that remain in effect until a final order is entered.
In cases involving custody disputes, the court may appoint a Guardian ad Litem to represent the child’s interests, or order a custody evaluation to help inform its decision.
Frequently Asked Questions
How much does a divorce cost in Virginia?
The cost of a divorce in Virginia varies significantly depending on whether the case is contested or uncontested. An uncontested divorce with a separation agreement in place is typically the most cost-effective path. Contested divorces that require discovery, expert witnesses, and trial preparation cost considerably more. During your initial consultation, Miles Franklin can provide a clearer estimate based on the specifics of your situation.
How long does a divorce take in Virginia?
An uncontested divorce can be finalized in as little as a few weeks after the separation period is met and all paperwork is filed. Contested divorces can take six months to over a year depending on the complexity of the issues and the court’s schedule. The mandatory separation period (six months or one year) must be completed before filing.
Can I file for divorce if my spouse lives in another state?
Yes. As long as you meet Virginia’s six-month residency requirement, you can file for divorce in Virginia even if your spouse lives elsewhere. However, if your spouse has no connection to Virginia, the court’s ability to address property division and support may be limited. An attorney can help you understand how jurisdiction applies to your case.
What happens if my spouse and I own a business together?
A business started during the marriage is generally considered marital property subject to equitable distribution. The court will need to determine the value of the business and decide how to divide that value fairly. This may involve business valuation experts and can be one of the more complex aspects of a divorce.
Schedule a Free Consultation
If you or someone you know is facing a divorce in Stafford, Fredericksburg, or anywhere in Northern Virginia, schedule a free consultation with Miles Franklin to discuss your case and learn about your options. You can also call (276) 773-6102 to speak with the office directly.