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Virginia courts are authorized to grant divorces on the basis of fault or following a period of separation of the parties (often referred to as "no-fault" divorce). The most frequently asserted grounds of a fault-based divorce are: adultery; conviction of a felony; and physical or mental cruelty and desertion (actual or constructive). A no-fault divorce may be based on a one-year separation of husband and wife (when the parties have one or more minor children). If the married couple has no minor children and has entered into a written, signed separation agreement (PSA), the parties can obtain a divorce upon a separation of six months.
In order to obtain a divorce in Virginia, one party must have been a resident (lives here in Virginia) and domiciliary (intends to remain in Virginia) of the state for at least six months immediately prior to filing for a divorce. Both parties must be over the age of eighteen and at least one party must have had the intent to end the marriage for the duration of the separation period (in the case of a no-fault divorce).
A divorce action is instituted when one party files a Complaint for Divorce. If there is a fault-based divorce, or if the parties have not resolved property, support, custody or other matters arising out of the marriage, the pre-litigation process will be utilized to prepare each party's case for trial, and will conclude after a trial when the Court rules on the evidence adduced and admitted in court. Following the trial, the judge will make a determination on support, property, and custody, among other pending issues, based on the evidence presented and the credibility of the witnesses.
"Equitable distribution" is the name of the trial wherein a judge will divide all marital property, assets and debts. Property acquired during the marriage is presumed to be marital property, however titled, unless it was a gift or inheritance to one party alone from outside the marriage and it is kept separately titled. The role of the court is to identify and classify all property (marital, separate or a combination of marital and separate, called hybrid); determine the value of all property; and then equitably divide the property between the parties. Although an equal division may be the outcome, there is no guarantee of a fifty/fifty outcome, which is why the trial process is called "equitable," but not equal distribution.
If parties have previously resolved all matters arising from the marriage and have a property settlement agreement, the divorce is considered "uncontested" and a simplified process ensues. For a divorce to be based on the parties' separation, not only must the parties have lived separate and apart for the requisite period of time, but one party must have had the intent that such a separation be a permanent one that would lead to divorce, and there must be no hope or probability of a reconciliation.
In such instances, a final divorce may even be granted without the parties ever appearing in court, but presenting "testimony" by written affidavits or during a deposition of one party and a corroborating witness. It is important to remember that, in Virginia, the divorce evidence must be corroborated by independent evidence, typically a witness.
In preparing for your initial meeting with your divorce lawyer, the client should bring a few years of tax returns, investment/bank account statements and debt information to the meeting. Information is power and will help your divorce mediation attorney to better assess your case and give you more accurate advice.
Contact us at (703) 691-3066 to learn more and discuss how you may need legal counsel and representation.