Nobody likes divorce, but sometimes getting a divorce becomes a necessity, and apart from the emotional impact divorce imposes on families, there are a number of legal issues that need to be addressed. This is why it is always a good idea to speak with an attorney, like the Law Office of Patricia E. Tichenor, P.L.L.C, from the start of the separation and divorce process. Here are some of the basic topics to consider, or what we call Divorce 101:
To get a divorce in Virginia, grounds, or the reason the court should grant a divorce, need to be established. There are five grounds in Virginia that include: adultery or sodomy outside marriage; conviction of a felony; desertion and cruelty; one-year separation (with minor children); or six-month separation (no minor children) with a signed Separation and Property Settlement Agreement.
In Virginia, “separation” occurs when at least one spouse forms the intention to permanently separate from the other spouse and ceases to act as a married couple with his/her spouse to the spouse and the rest of the world around them. When this occurs, they are considered separated even if they have not yet signed a formal separation agreement. This typically can include living in separate bedrooms and possibly separate parts of the marital home and living as merely a roommate. It can but does not require that one spouse physically move out of the marital home. Upon separation, spouses should not engage in activities that could be construed to be them acting as a married couple, such as taking vacations together, expecting on spouse to cook or clean, etc.
A separation agreement is a contract between the parties that spells out each person’s rights and responsibilities during the separation through the divorce, and should include issues surrounding child support, custody and visitation; spousal support; and division of debts and marital property. The separation agreement aids in determining the terms of your separation and divorce, otherwise, a judge may decide them. It is in the best interest of all parties to outline an amicable separation agreement as soon as possible.
Child Custody and Visitation
To determine child custody and visitation, the courts look at the best interests of the child or children, taking into account a number of factors including: safety; maintaining meaningful and positive relationships with parents; minimal disruption to the child’s life; relationships with parents, siblings and family members; and a child’s preference if they are old enough to express an opinion. Parents are encouraged to work out a custody and visitation schedule and submit it to the judge.
A variety of visitation options can be considered, including “bird-nest” co-parenting. This allows the child(ren) to remain in the family home while the parents rotate in and out like birds alighting on the nest. When not living in the home, the alternate parent must reside in a separate residence. This approach works best with co-parenting agreements and with both parents living in close proximity to the family home.
Since Virginia is not a community property state, each spouse does not automatically receive one half of the other spouse’s property. Instead, property is classified as “marital” or “separate.” Separate property refers to property acquired prior to the marriage, inherited or gifted, or proceeds from the sale of separate property. Marital property refers to property titled in both spouse’s names, and non-separate property acquired during the marriage. Property divisions can be outlined in the separation agreement, otherwise, the courts may divide property.
The courts will generally not award spousal support to the party who has committed adultery so long as that adultery is proven by clear and convincing evidence to have taken place within less than 5 years from the date of separation and the non-adulterous spouse has not engaged in a sexual relationship with the unfaithful spouse after learning of the adultery. If denying spousal support could result in severe harm (sometimes called “manifest injustice”) to the spouse seeking it, even an adulterous spouse will be entitled to spousal support.
Contact Your Attorney
This post outlines the very basic elements of Divorce 101, but since each divorce is unique, it is always wise to contact an attorney. Each party should engage an attorney separately; we do not and cannot represent both sides in a divorce issue.