Divorce Q&A

How was divorce law invented?

Law in the U.S. and Virginia have been adopted primarily through two means; statutory law (laws that have been passed by the Virginia General Assembly, signed by a Governor and appear in the Code of Virginia) and common law (laws that transferred to us from England in the 1600’s). All statutory law appears in the Virginia Code, which can be found online at https://law.lis.virginia.gov/vacode .  If you ever want to know what the law is on divorce and custody, you can likely get an initial understanding by looking it up, probably under Title 20. Domestic Relations, or in Title 16.1 Courts Not of Record (because family law issues are usually addressed first in the Juvenile and Domestic Relations Court, which is “not of record.”)  As there was no divorce in Old England, Virginia has no “common law” on divorce.

But nothing in the law is simple – especially when the best interest of a child is part of the equation. When the Code of Virginia does not precisely speak to exactly dictate how a divorce is to be resolved, the Courts of Virginia interpret it, and a divorce attorney will search caselaw made by the Courts to “fill in the gaps.” Depending upon your situation, your family law attorney will rely upon the Virginia Code, and refer a judge to prior cases that might set a precedent.  A judge and jury may take those prior cases into consideration when weighing the merits or your divorce case today.

What are different kinds of divorce in Virginia?

There are actually two types of divorce in Virginia. The first is called “bed and board” divorce. The grounds for this type of divorce are either cruelty or desertion. The effect of a bed and board divorce is that the two people will be declared separated and their personal rights and property protected. Though the people are decreed to be legally separated, under bed and board divorce neither person can marry again while the other is alive – so usually the arrangement is formalized as a final divorce.

The second type of divorce is called a “final divorce,” which allows an individual to remarry someone else if he or she so desires.  This is usually what we see granted in Virginia courts.

Do you have to have a legal reason to get a Divorce in Virginia?

Generally speaking, you do need a legal reason for a divorce.  Virginia does not allow a divorce based on “irreconcilable differences,” which is allowed in some other states – and you should never rely upon the advice of a friend or family member who just got their divorce in a neighboring jurisdiction, or in another US state that may have completely different laws or policy.

What kinds of legal reasons does Virginia accept for divorce?

Virginia recognizes both “Uncontested” divorce and divorce based on “Cause.” When people think of divorce, they often think of “for cause” divorce because it is much more dramatic; however, these days it is actually much less common than an Uncontested or No-Fault Divorce. The grounds for “Cause” include: adultery, sodomy, buggery, conviction of a felony, cruelty and desertion. Thus, for example, if a spouse has an extramarital affair, then the husband or wife may have grounds for divorce based upon the “Cause” of adultery.  (Adultery, however, requires very strong evidence to prove – like a direct admission or photographic proof.  Suspicion is never enough.)

If you have to have a legal reason to divorce in Virginia, then what is “Uncontested” Divorce?

An “Uncontested” Divorce can be granted if the spouses have lived “separate and apart” for one year, or for six months if there are no minor children. In addition, the couple often negotiates a signed a written agreement, commonly called a “Separation Agreement.” This document sets forth the agreement of the two spouses on how they want to separate their property, and whether they agree to spousal support. If they have kids, the separation agreement will additionally set forth their agreement on custody and child support.  Even though this is known as the “no fault” divorce, you still have to have been separated for one year or six months, depending on the circumstances— that stands as the legal reason for the divorce.

If I get separated from my spouse, what do I do during the time while we are waiting for the divorce to be finalized? I hear this could take 6 months, a year or even more?

During the process of a divorce, the court can make orders called pendente lite relief, or what happens pending the divorce proceedings and up to the final order of divorce being granted. If there is a dispute as to things like

  • who lives where, 
  • who pays what bills, 
  • who gets what property pending the final divorce, 
  • who gets custody, 
  • how much is child support, 
  • should there be spousal support, 

… these issues are all potentially addressed heard at a pendente lite hearing, which is usually the first hearing in the divorce process.

If my spouse and I agree on things like child support and dividing our assets, do we need to have a pendente lite hearing?

No.  In fact, the more you can agree with your spouse, the less reason for a hearing. And this saves you lots of money because every hearing will cost you attorney’s fees.

What if we can agree on all the financial stuff, but we can’t agree regarding the children?

In contested divorces, a pendente lite hearing becomes very important as it relates to custody. The pendente lite hearing will be the first court decision regarding custody and support of children.

If the court awards my spouse custody at the pendente lite hearing, will I lose at the final hearing?

Not necessarily.  Remember that these are decisions “pending” a final divorce hearing, so they are not final decisions, and any issue addressed by these orders will be re-addressed later in the proceedings. With that said, when it comes to custody, the results can have implications later. It is not uncommon for a spouse to argue that “since the children have lived with me since our separation, and since they are used to being here and have been doing well, it is in their best interest to stay with me.”

If the pendente lite hearing is not final, why should it impact the final hearing? Isn’t that unfair?

In matters of custody, the “best interest of the child” standard is used. And if, in fact, the children have been doing well where they have been “pending” the divorce, it is a valid argument to maintain the same custody arrangement as was ordered at the pendente lite hearing.  This may not seem “fair” in some instances, but the court is going to be most concerned with acting in the “best interest” of the children.  You can find that statute at § 20-124.3 – it lists various factors that the court considers when making decisions for children in custody disputes.

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