VA Domestic Relations Flashcards
Grounds for Divorce in Virginia
Adultery, cruelty, desertion, felony conviction, and separation for one year.
Adultery as a Ground for Divorce
Requires clear and convincing evidence of sexual intercourse outside the marriage.
Cruelty as a Ground for Divorce
Requires proof of physical or mental cruelty that endangers life, limb, or health.
Desertion as a Ground for Divorce
Requires proof that one spouse left the marital home with the intent to desert for one year or longer.
Felony Conviction as a Ground for Divorce
Requires proof that one spouse has been convicted of a felony and sentenced to confinement for more than one year.
Separation for One Year as a Ground for Divorce
Requires proof that the spouses have lived separate and apart without cohabitation for one year.
Equitable Distribution Factors
Contributions to the well-being of the family, duration of the marriage, ages and physical and mental condition of the parties, how and when specific marital property was acquired, debts and liabilities, and tax consequences.
Best Interests of the Child Standard
Used to determine child custody and visitation arrangements based on the child’s age, physical and mental condition, relationship with parents, needs, and other factors.
Spousal Support Considerations
Duration of the marriage, standard of living during the marriage, age and physical and mental condition of the parties, financial resources, education and training, and contributions to the family.
Modification of Child Support
Requires a material change in circumstances since the last order.
Residency Requirement for Divorce
At least one party must have been a resident of Virginia for six months prior to filing.
No-Fault Divorce
Requires living separate and apart without cohabitation for one year, or six months if there are no minor children and a separation agreement is in place.
Annulment Grounds
Fraud, duress, bigamy, incest, mental incapacity, underage without parental consent, and impotence.
Legal Separation
Virginia does not recognize legal separation; couples can live apart and file for divorce after the required period.
Temporary Support Orders
Issued to provide financial support during the divorce proceedings.
Marital Property
All property acquired during the marriage, regardless of how it is titled.
Separate Property
Property acquired before the marriage, by inheritance, or as a gift from a third party.
Commingled Property
Separate property that has been mixed with marital property and may be considered marital if it loses its separate character.
Transmutation
Separate property that becomes marital property through joint titling or significant contributions from the other spouse.
Spousal Support Types
Periodic payments, lump-sum payments, and rehabilitative support.
Child Support Guidelines
Based on parents’ incomes, number of children, and other relevant factors.
Deviation from Child Support Guidelines
Court may deviate if the guideline amount is unjust or inappropriate.
Visitation Rights
Non-custodial parent is generally entitled to reasonable visitation unless it is not in the child’s best interests.
Joint Custody
Both parents share decision-making responsibilities, and the child spends significant time with both
Sole Custody
One parent has primary decision-making responsibilities and the child primarily resides with that parent.
Parental Relocation
Requires notice to the other parent and court approval if it affects visitation or custody arrangements.
Guardian ad Litem
A court-appointed advocate for the child’s best interests in custody and visitation disputes.
Protective Orders
Issued to protect individuals from domestic violence, abuse, or harassment.
Enforcement of Support Orders
Wage garnishment, tax refund interception, and contempt of court.
Modification of Spousal Support
Requires a material change in circumstances since the last order.
Termination of Spousal Support
Remarriage of the recipient, death of either party, or as specified in the divorce decree.
Marital Settlement Agreement
A contract between spouses outlining terms of the divorce, including property division, support, and custody.
Equitable Distribution vs. Community Property
Virginia follows equitable distribution, meaning property is divided fairly but not necessarily equally.
Pendente Lite Relief
Temporary orders for support and custody during the pendency of the divorce proceedings.
Ending a Marriage
A valid marriage, including a common-law marriage, can only be terminated by annulment, divorce, or death. In Virginia, the circuit courts have jurisdiction over domestic relations matters, such as suits for annulment, affirmance of marriage, divorce, and claims for separate maintenance.
Annulment
An annulment voids a marriage and declares it as having never been valid (as opposed to divorce, which terminates a valid marriage). Va. Code Ann. § 20-89.1. The grounds for annulment must exist at the time of entry into the marriage.
Grounds for Divorce
In Virginia, there are four fault grounds for absolute divorce. These grounds are adultery (or sodomy or buggery), conviction of a felony, willful desertion, and cruelty. In addition, Virginia recognizes a “no-fault” ground for absolute divorce based on separation without cohabitation. When multiple grounds exist for divorce, the ground upon which a divorce will be granted is within the discretion of the trial court.
Fault for Spousal Support
Fault by either party must be considered (felony conviction, adultery, desertion, or cruelty) by a Virginia court determining whether to award spousal support. No spousal support may be awarded to a spouse who commits adultery, unless the court determines from clear and convincing evidence that denial of spousal support to the guilty party would constitute a “manifest injustice” based on the spouses’ respective degrees of fault (payor’s fault) and their relative economic circumstances (extreme economic disparity).
Financial Support of Spouses and Children
Spousal support (also referred to as maintenance or alimony in Virginia) is the obligation of the spouse who has the greater financial resources to provide monetary support to the other spouse. It is awarded if one spouse cannot provide for her own needs. In Virginia, spousal support is available when the court decrees (i) a dissolution (annulment) of a voidable marriage, (ii) a divorce (either from the bond of matrimony or from bed and board), (iii) that neither party is entitled to a divorce, or (iv) when separate maintenance is appropriate. Va. Code Ann. § 20-107.1(A). Spousal support is available for either party in a marriage, even if the party fails to prove her grounds for divorce. The court, however, has no power to decree maintenance payable by the estate of a deceased spouse. Va. Code Ann. § 20-107.1(A). The court has the discretion to award reasonable attorney’s fees in addition to spousal support. Va. Code Ann. §20-71.1.
Types of Spousal Support
Spousal support may take the form of periodic payments for a defined duration, periodic payments for an undefined duration, a lump sum, or any combination of these. Va. Code Ann. § 20-107.1(C). Additionally, temporary maintenance support during the divorce proceedings, called pendente lite maintenance, can be awarded. The court, in its discretion, can order a spouse to pay any sums necessary for the maintenance and support of the petitioning spouse while the divorce suit is pending, including an order that the other spouse provide health care coverage for the petitioning spouse, pay secured and unsecured debts incurred jointly or by either party, and maintain or modify an existing life insurance policy. Pendente lite maintenance must be paid from the obligor-spouse’s post-separation income unless the court orders otherwise. Upon the request of a party, the court may identify the source from which the maintenance is to be paid.
Modification of Support Orders
Virginia courts can modify spousal support orders to increase, decrease, or terminate payment, as the circumstances may make proper, unless the parties contracted otherwise. The new decree operates only prospectively.
To justify a change in spousal support, the court must find an (i) involuntary and unforeseen, (ii) material change in the parties’ circumstances.
Child Support
Child support is the payment by one parent to the other for the support of a common child. Both parents, regardless of marital status, are legally required to support their minor children. In Virginia, the obligation to support a child remains until the child reaches the age of 18 or is emancipated. However, the obligation may be extended until the child reaches the age of 19 or graduates high school, whichever comes first, if the child is a full-time high school student, is not self-supporting, and still lives at the home of the parent seeking or receiving child support. The court may also order the continuation of child support for any child over the age of 18 if the child is severely and permanently mentally or physically disabled, such disability existed prior to the child reaching the age of 18 (or 19 if still in high school), the child is unable to live independently and support himself, and the child resides in the home of the parent seeking or receiving child support.
Custody
Having custody (i.e., control) of a child can mean having legal custody or physical custody, or both. Either or both of these types of custody can be shared under a joint custody arrangement. In Virginia, neither parent has a legal presumption favoring them as the custodial parent.
Legal custody is the right of a parent to make major decisions, as contrasted to everyday decisions, regarding the minor child. Typically, areas of health, education, and religion are encompassed.
Physical Custody
Physical custody is the right to have the child reside with a parent or guardian and the obligation to provide for routine daily care and control of the child. As with legal custody, physical custody may be shared by both parents under a joint custody arrangement.
Joint custody generally requires that the parents are both willing and able to cooperate with respect to the well-being of the child. The court may order joint custody if it is in the best interests of the child.
Custody Jurisdiction
Virginia courts have subject matter jurisdiction to preside over custody hearings and either enter or modify custody orders if Virginia:
i) Is the child’s home state and has been the home state for a period of six months or since birth, if the child is less than six months old; or
ii) Was the child’s home state in the past six months and the child is absent from the state, but one of the parents (or guardians) continues to live in the state.
Premarital Agreements
A premarital (also known as “prenuptial” or “antenuptial”) agreement is a contract entered into by prospective spouses in contemplation of marriage, typically containing terms that relate to division of property or spousal support in the case of divorce or death. Although a valid marriage is generally treated as sufficient consideration for a premarital agreement, Virginia statute does not require consideration. The agreement is effective upon the marriage of the parties. If the marriage fails to take place, the parties are discharged from the obligations of the agreement. Va. Code Ann. § 20-149.
Separation Agreement
A separation agreement is a contract entered into by a married couple in contemplation of, or as a consequence of, their separation. This agreement can define property division, spousal support, and child support, custody, and visitation. The court generally will enforce spousal maintenance and property division provisions so long as the agreement is not unconscionable. Provisions related to child support and custody, on the other hand, are modifiable by the court if the initial terms are not in the best interest of the child.
In a suit for annulment, divorce, or separate maintenance, if a stipulation or contract signed by the party to whom such relief might otherwise be awarded is filed before entry of a final decree, no decree ordering spousal support and maintenance or imposing any monetary or nonmonetary condition can be made except in accordance with that stipulation or contract. The court must modify its decree to conform to such stipulation or contract filed after entry of a final decree upon a party’s request.
