Understanding the Grounds for Divorce in Virginia

To file for divorce in Virginia, you must state a legal reason, or “ground,” for the dissolution of the marriage. These grounds are categorized as either “no-fault,” which is based on a period of separation, or “fault-based,” which involves misconduct by one spouse such as adultery, cruelty, or desertion. The choice of grounds can significantly influence the timeline and outcome of your case, particularly regarding spousal support and property division.

Over my years of practice, I’ve seen how the selection of grounds for divorce sets the entire tone for the case. It’s a foundational decision. Virginia law, under § 20-91 of the Code of Virginia, provides for both fault and no-fault options, and each has strategic implications.

No-Fault Divorce: The Path of Separation

The most common path to divorce in Chesapeake is the “no-fault” ground. This doesn’t require proving that one spouse harmed the other; it simply recognizes that the marital relationship has irretrievably broken down. To qualify, you must meet a statutory separation period:

• One-Year Separation: If you and your spouse have minor children, or if you do not have a signed Property Settlement Agreement, you must live continuously separate and apart, without cohabitation, for a full year before the court can grant the divorce.
• Six-Month Separation: The separation period is reduced to six months if you have no minor children from the marriage AND you have a comprehensive, written, and signed Marital Settlement Agreement (also known as a Property Settlement Agreement) that resolves all issues of property and debt.

“Separate and apart” means more than just sleeping in different bedrooms. It requires that at least one spouse has the intent for the separation to be permanent and that you cease “cohabitation,” which includes not just a sexual relationship but also behaving as a married couple publicly or privately.

Fault-Based Grounds for Divorce

While less common as the primary filing reason today, fault grounds remain a powerful tool in divorce proceedings. Proving fault can be a bar to the at-fault party receiving spousal support and can be a factor the court considers when dividing property. The primary fault grounds are:

• Adultery: This is defined as sexual intercourse by a married person with someone other than their spouse. Proving adultery requires clear and convincing evidence, which can be challenging to obtain. A conviction of adultery is a statutory bar to receiving spousal support, with a narrow exception for “manifest injustice.”
• Cruelty: This involves acts of physical or mental cruelty that endanger the life, safety, or health of the other spouse, making continued cohabitation unsafe or intolerable. This is a high standard to meet and typically requires a pattern of behavior, not an isolated incident.
• Desertion/Abandonment: This occurs when one spouse breaks off marital cohabitation with the intent to desert the other. The desertion must be continuous for one year before a divorce can be granted on this ground.

Filing on fault grounds can make a divorce more contentious and expensive, as it requires proof of the alleged misconduct. However, it can provide leverage in negotiations, particularly concerning financial matters.

Consequences & Stakes: What a Divorce Decree Finalizes

A Final Decree of Divorce is a legally binding court order that does far more than just end a marriage. It permanently resolves critical financial and parental rights and responsibilities. The stakes are incredibly high, as the decree dictates the division of all marital property and debt (equitable distribution), determines any spousal support obligations, and establishes a final ruling on child custody, visitation, and support.

When I sit down with a new client, I emphasize that we are not just ending a relationship; we are building the legal and financial foundation for their future. A misstep in the divorce process can have consequences that last for decades. The court’s final order will address several key areas, guided by Virginia statutes.

Equitable Distribution of Property and Debts

Pursuant to § 20-107.3 of the Code of Virginia, Virginia courts follow the principle of “equitable distribution.” This does not mean a 50/50 split. Instead, the court divides marital property and debt in a manner it deems fair and equitable. The process involves three steps:

1. Classifying Property: The court determines what is “marital property” (generally, assets and debts acquired during the marriage), “separate property” (assets acquired before marriage or by gift/inheritance), or “hybrid property” (part marital, part separate).
2. Valuing Property: All marital property, from the house and cars to retirement accounts and business interests, must be assigned a monetary value.
3. Distributing Property: The court considers numerous factors to decide on a fair division, including each spouse’s monetary and non-monetary contributions to the family, the duration of the marriage, the grounds for divorce, and the tax consequences of any award.

Spousal Support (Alimony)

Spousal support is not automatic. As per § 20-107.1, the court will consider whether one party is eligible for support and, if so, the amount and duration. This is one of the most contentious areas of divorce law. The court weighs factors such as the needs of the requesting spouse, the other spouse’s ability to pay, the standard of living during the marriage, the duration of the marriage, and the fault grounds for divorce. Support can be awarded for a defined period, for an indefinite period, or as a lump sum.

Child Custody and Visitation

For parents, nothing is more important than their children. Under § 20-124.3, all custody and visitation decisions are made based on the “best interests of the child.” The court will establish both legal custody (the right to make major decisions for the child) and physical custody (where the child primarily resides). The court analyzes a list of factors, including the child’s age, the physical and mental condition of each parent, the relationship each parent has with the child, and the child’s needs.

The Legal Process: A Step-by-Step Guide to Filing in Chesapeake

Filing for divorce in Chesapeake is a structured legal process that begins with meeting Virginia’s residency and separation requirements. The case is initiated by filing a “Complaint for Divorce” at the Chesapeake Circuit Court. Following this, your spouse must be formally served with the lawsuit, after which they have a period to respond. The process may then involve discovery, negotiations, settlement agreements, and potentially a trial before a judge issues the Final Decree of Divorce.

Having managed thousands of cases through the Virginia court system, I can distill the process into a series of predictable steps. While every case is unique, the procedural framework remains consistent.

Step 1: Satisfy Residency and Separation Requirements

Before any paperwork is filed, you must meet the jurisdictional prerequisites. As outlined in § 20-97, at least one spouse must be a bona fide resident and domiciliary of Virginia for at least six months prior to filing. You must also complete the statutory separation period (six or twelve months) as discussed earlier.

Step 2: Prepare and File the Complaint for Divorce

The divorce officially begins when one spouse (the “Plaintiff”) files a “Complaint for Divorce” with the court. This legal document identifies the parties, states that you meet the residency requirements, provides the legal grounds for the divorce, and asks the court to grant the divorce and other relief (like property division, support, etc.).

Step 3: File in the Correct Venue: The Chesapeake Circuit Court

Venue refers to the proper court location. According to § 20-96, you must file in the Circuit Court for the city or county where the parties last lived together as a couple, or at the option of the plaintiff, in the city or county where the defendant resides. For residents of Chesapeake, this means your case will be heard at the Chesapeake Circuit Court.

Step 4: Service of Process

Your spouse (the “Defendant”) must receive formal legal notice that you have filed for divorce. This is called “service of process.” It is typically accomplished by having the Sheriff’s Office or a private process server personally deliver a copy of the Complaint and a Summons. The Defendant can also voluntarily accept service by signing a waiver.

Step 5: The Defendant’s Response

After being served, the Defendant has 21 days to file a responsive pleading with the court. This is usually an “Answer,” which admits or denies the allegations in the Complaint. The Defendant may also file a “Counterclaim,” essentially suing the Plaintiff for divorce in the same case and asserting their own grounds and requests for relief.

Step 6: Discovery and Pendente Lite Hearings

This is the information-gathering phase. Both sides can use legal tools like interrogatories (written questions), requests for production of documents, and depositions (sworn testimony) to obtain information about finances, assets, and other relevant issues. During this time, if there are immediate issues like temporary support or custody, a party can request a pendente lite hearing. In Chesapeake, these temporary matters are often first addressed in the Chesapeake Juvenile and Domestic Relations District Court before the full divorce proceeds in Circuit Court.

Step 7: Negotiation, Mediation, and Settlement

The vast majority of divorce cases do not go to trial. Instead, they are resolved through negotiation between attorneys or through mediation. The goal is to reach a Marital Settlement Agreement (MSA) that resolves all issues. An MSA is a legally binding contract that is incorporated into the Final Decree of Divorce.

Step 8: The Final Hearing and Decree of Divorce

If a settlement is reached, a final hearing can be a brief affair where the agreement is presented to the judge. In an uncontested, no-fault case, evidence can sometimes be submitted by affidavit without a court appearance. If no settlement is reached, a trial will be scheduled where both sides present evidence and testimony, and the judge makes the final decisions. The case concludes when the judge signs the Final Decree of Divorce.

The SRIS Divorce Readiness Checklist

From my experience, the most challenging part of initiating a divorce is often getting organized. To empower our clients, we developed this practical tool. The SRIS Divorce Readiness Checklist helps you gather the critical information and documentation needed to protect your interests and streamline the legal process. Taking these steps can save time, reduce legal fees, and provide a clearer picture of your financial landscape.

Phase I: Information Gathering (Personal & Financial)

• Personal Information:
  • Full legal names and dates of birth for yourself, your spouse, and all minor children.
  • Date and location of your marriage.
  • Social Security numbers for yourself and your spouse.
  • Current addresses and contact information for both parties.
• Financial Documentation (Gather as much as possible):
  • Income: Last 3 years of tax returns (both personal and business), recent pay stubs for both spouses.
  • Real Estate: Deeds, mortgage statements, property tax assessments for all real property.
  • Bank Accounts: Statements for the last 12-24 months for all checking, savings, and money market accounts.
  • Retirement & Investments: Recent statements for all 401(k)s, IRAs, pensions, brokerage accounts, and stock options.
  • Debts: Statements for all credit cards, auto loans, student loans, and personal loans.
  • Vehicles: Titles and loan statements for all cars, boats, or other vehicles.
  • Insurance: Life, health, and disability insurance policies.

Phase II: Child-Related Documentation (If Applicable)

• Copies of birth certificates for all minor children.
• Information on school and daycare costs.
• Documentation of children’s medical expenses and insurance costs.
• A draft of a potential weekly parenting schedule that you believe is in the children’s best interest.

Phase III: Initial Action Steps

• Create a detailed list of all known marital assets and debts.
• Create a realistic monthly budget for your post-separation expenses.
• Securely copy important documents. Store them outside the marital home.
• Consider opening a new bank account in your name only for post-separation funds.
• Change passwords on personal email and social media accounts.
• Schedule a confidential case assessment with a seasoned family law attorney.

Strategic Considerations in a Chesapeake Divorce

Effectively navigating a divorce requires more than just following procedure; it demands strategic foresight. Key strategies include choosing the appropriate grounds for filing (fault vs. no-fault), meticulously documenting all financial and personal conduct, and approaching negotiations with a clear understanding of your goals and Virginia’s equitable distribution laws. Proactive, informed decision-making is paramount to protecting your long-term interests.

In the chess match of a divorce proceeding, every move matters. Here are some of the strategic considerations I discuss with every client at the Law Offices Of SRIS, P.C.

Choosing Your Grounds Strategically

While a no-fault divorce is often simpler, pleading a fault ground like adultery can create significant leverage. If you have strong proof of adultery, it can be a bar to your spouse receiving spousal support. Even if the proof is not a “slam dunk,” the allegation can bring a reluctant spouse to the negotiating table to avoid having the details aired in open court. The strategy isn’t about punishment; it’s about achieving an equitable outcome.

The Power of Meticulous Documentation

The spouse who is better organized and has better documentation often has an advantage. From the outset, begin keeping a journal of significant events, especially if cruelty or desertion might be an issue. Preserve financial records, emails, and text messages that could be relevant to financial matters or fault grounds. This organized evidence is invaluable during discovery and negotiations.

Negotiating from a Position of Strength

Strength in a divorce negotiation comes from knowledge. Understand your complete marital financial picture. Know what you are entitled to under Virginia’s equitable distribution factors. Define your priorities—is keeping the marital home more important than a portion of a retirement account? Having clear goals allows your attorney to negotiate effectively and to advise you on when a settlement offer is fair and when you should push for more.

Maintaining Composure and Decorum

A crucial, yet often overlooked, strategy is to maintain your composure. This is especially true when children are involved. Judges are observant. A parent who acts with malice, disparages the other parent, or behaves erratically in person or online can severely damage their own case, particularly in custody disputes. Acting with dignity and focusing on the legal issues is a strategy that pays dividends.

Common Mistakes to Avoid When Filing for Divorce

Over two decades, I’ve seen the same heartbreaking mistakes derail otherwise manageable divorce cases. Avoiding these common pitfalls can protect your financial health and parental rights.

1. Moving Out of the Marital Home Prematurely: Leaving the home without a legal agreement could be construed as desertion. It can also create a status quo for child custody that can be difficult to change later. It is always best to consult an attorney before either party moves out.
2. Hiding or Undervaluing Assets: This is a cardinal sin in divorce court. If discovered, it destroys your credibility with the judge and can lead to severe penalties, including the court awarding a larger share of the assets—or even the entire hidden asset—to your spouse.
3. Using Children as Pawns: Attempting to alienate your children from the other parent or using them to pass messages is incredibly damaging to the children and will be viewed very unfavorably by the court. The “best interests of the child” standard requires parents to foster a healthy relationship with the other parent.
4. Oversharing on Social Media: Everything you post is potential evidence. Photos of lavish vacations can undermine a claim of financial need. Angry posts can be used as evidence of an inability to co-parent. The best policy is to refrain from posting anything about your case or personal life.
5. Neglecting Tax Implications: The way property is divided and whether support is structured as child support or spousal support can have massive tax consequences. Failing to consider these can result in a settlement that is far less favorable than it appeared on paper.
6. Signing a Settlement Agreement Without Legal Review: A Marital Settlement Agreement is a binding contract. Once you sign it, it is extremely difficult to undo. Never sign any legal document related to your divorce without having a seasoned family law attorney review it thoroughly to ensure your rights are protected.

Glossary of Key Virginia Divorce Terms

Complaint for Divorce

The initial legal document filed with the Circuit Court that starts the divorce lawsuit.

Plaintiff

The person who files the initial Complaint for Divorce.

Defendant

The person against whom the divorce is filed; the spouse of the Plaintiff.

Equitable Distribution

Virginia’s legal standard for dividing marital property and debt in a manner that is fair, but not necessarily equal.

Spousal Support (Alimony)

Financial support paid by one spouse to the other, either for a set period or indefinitely, to address financial disparities after the divorce.

Pendente Lite

A Latin term meaning “pending the litigation.” It refers to temporary court orders for custody, support, or other matters that are put in place while the divorce case is ongoing.

Marital Settlement Agreement (MSA)

A legally binding contract signed by both spouses that resolves all issues in their divorce, including property, debt, support, and child-related matters. It is typically incorporated into the Final Decree of Divorce.

Common Scenarios & Questions from Chesapeake Residents

Scenario 1: “My spouse and I agree on everything. Do we still need to go through this whole process?”

Answer: Even in a completely amicable, uncontested divorce, you must still follow the legal procedures of the Chesapeake Circuit Court. You need to file a Complaint, have a signed Marital Settlement Agreement, and submit the required paperwork to a judge for approval. The good news is that for a true uncontested divorce based on a six-month separation with an MSA, the process can be streamlined. Often, evidence can be submitted by deposition or affidavit, meaning you may not have to physically appear in court. However, having an attorney draft or review your MSA is critical to ensure it is legally sound and truly protects your interests.

Scenario 2: “I just found out my spouse was cheating. Can I file for divorce immediately and have them thrown out of the house?”

Answer: You can file for divorce immediately on the ground of adultery. However, this does not mean the divorce will be granted immediately, nor does it automatically force your spouse from the marital home. Proving adultery requires clear evidence. Furthermore, forcing a spouse out of the marital home typically requires a specific court order, which is not granted lightly. While the adultery will be a significant factor in whether your spouse can receive spousal support, the practical realities of the legal process—including property rights in the home—must be carefully navigated.

Scenario 3: “We own a successful small business together in Chesapeake. How in the world is that divided?”

Answer: Dividing a business is one of the most complex aspects of equitable distribution. The first step is getting a professional business valuation to determine its fair market value. From there, several options exist. One spouse might buy out the other’s interest, the business could be sold with the proceeds divided, or in rare cases, the ex-spouses might continue to co-own the business post-divorce. This situation absolutely requires seasoned legal and financial counsel to analyze the business structure, value, and tax implications of each option to arrive at a fair and workable solution.

Frequently Asked Questions (FAQ)

1. How much does it cost to file for divorce in Chesapeake?

The cost varies dramatically. At a minimum, there is a court filing fee. The largest cost is typically legal fees, which depend on the complexity and contentiousness of your case. An uncontested divorce with a full agreement will cost significantly less than a contested case involving business valuations and custody trials.

2. How long does a divorce take in Chesapeake, Virginia?

The timeline is controlled by the mandatory separation period (6 or 12 months). Once the separation period is met, an uncontested divorce can be finalized in as little as one to two months. A contested divorce can take a year or much longer, depending on the court’s docket and the complexity of the issues.

3. What is a Marital Separation Agreement and do I need one?

It’s a contract between you and your spouse that resolves all divorce-related issues. If you want to get divorced after only a six-month separation (and have no minor children), you MUST have one. It is highly advisable in almost every case as it allows you to control the outcome rather than leaving it to a judge.

4. Do I have to prove fault to get a divorce in Virginia?

No. You can obtain a divorce on “no-fault” grounds after being separated for the required time period.

5. Can I get divorced in Virginia if I don’t know where my spouse is?

Yes, but it’s more complicated. You must show the court you’ve made a diligent effort to find your spouse. If you cannot, the court may allow you to serve them through a “publication,” which involves posting notice in a newspaper. This is a technical process that requires an attorney’s guidance.

6. Does it matter who files for divorce first?

Legally, there is very little significance to being the Plaintiff versus the Defendant. The primary practical advantage is that the Plaintiff gets to present their case first at trial. It does not provide any inherent advantage in the outcome.

7. What is the difference between the Chesapeake J&DR Court and the Circuit Court?

The Juvenile and Domestic Relations (J&DR) District Court handles initial custody, support, and family abuse protective orders, often on an expedited basis. However, only the Circuit Court has the authority to grant a final divorce, perform equitable distribution of property, and make those J&DR orders permanent.

8. Is Virginia a “community property” state?

No. Virginia is an “equitable distribution” state. This means property is not automatically split 50/50. The court divides it based on what it determines is fair after weighing numerous statutory factors.

9. Can I date while I am separated from my spouse?

I strongly advise against it. Until the Final Decree of Divorce is signed by a judge, you are still legally married. A relationship during separation is technically adultery and could be used against you, especially concerning spousal support.

10. Do I really need an attorney for an uncontested divorce?

While it’s possible to represent yourself, it is very risky. The legal documents, especially a Marital Settlement Agreement, create legally binding rights and obligations for the rest of your life. An experienced attorney ensures the agreement is drafted correctly, is enforceable, and doesn’t contain hidden pitfalls that could harm you financially in the future.

11. How is child support calculated in Virginia?

Virginia uses a specific formula outlined in the state code. The calculation is based on both parents’ gross monthly incomes, the cost of work-related childcare, and the cost of health insurance premiums for the children. The amount of time each parent has with the children also heavily influences the calculation.

12. Can a judge’s decision on custody or support be changed later?

Yes. Child custody, visitation, and support orders can always be modified if there has been a material change in circumstances since the last order was entered. Spousal support may or may not be modifiable, depending on the language in the Final Decree or Settlement Agreement.