According to an August 2024 report by the U.S. Census Bureau, the national divorce rate was 7.1 in 2022. However, that’s only the average, so rates in other states can be higher or lower.
Virginia’s divorce rate is 7.9, higher than the national average, as shown in the Census Bureau’s interactive map. As a result, Virginia ranks 22nd highest among the 50 states.
So, does that mean getting a divorce in Virginia is easier? How do you file for one anyway, and what are the requirements? Most importantly, what are your rights, especially if you have children?
The team at Kearney, Freeman, Fogarty & Joshi, PLLC, our law firm in Fairfax, VA, has put together this guide to answer all those questions, so read on.
How to File for Divorce in Virginia?
One spouse must file an official complaint to initiate a divorce case in Virginia. The spouse who does so becomes the “plaintiff,” while the other becomes the “defendant.”
If you’re a resident of Fairfax, VA, the Fairfax County Circuit Court can process the civil case filing for you. You can file it in person or opt for electronic divorce filing online.
Establishing Grounds for Divorce
In Virginia divorce proceedings, plaintiffs must provide a “ground” or legal reason for their request. The ground can be no-fault or fault-based, and both have varying requirements, which we’ll discuss in more detail below.
Serving the Divorce Papers
Once filed, the plaintiff must serve the divorce papers to their spouse. However, they can’t do it themselves; they must enlist the services of a party authorized to serve the process and comply with the Code of Virginia Article 3 § 8.01-293. Examples are the Sheriff’s Office or a process server.
Waiting for the Other Spouse’s Response
Once the other spouse gets served, the next steps in the divorce depend on how the defendant responds. The divorce may get finalized without a court hearing if they don’t contest it. However, if they do, the process lengthens and becomes more complicated, usually requiring discovery and several court hearings.
What Are Specific Virginia Divorce Requirements?
In Virginia, filing for divorce comes with the following requirements:
- Residency requirements
- Separation requirements for uncontested divorce
- Written settlement agreement for uncontested divorce
- Fault-based grounds for divorce
Residency Requirements
Residency requirements refer to one or both spouses being a state resident for a specified period. In Virginia, either the plaintiff or defendant should have been a Commonwealth resident for at least six months before either can file for divorce.
Separation Requirements for Uncontested Divorce
Under Virginia Code § 20-91, the no-fault grounds requirement for uncontested divorce is that the spouses have lived “separate and apart” without interruption or cohabitation for at least one year. However, the requirement can be as short as six months for spouses without minor children, provided they have a settlement agreement.
Written Property Settlement Agreement for Uncontested Divorce
Also known as a separation agreement, a property settlement agreement is a written document addressing issues involved in dissolving a marriage in Virginia. Some of the matters covered include:
- Property and debt division
- Alimony or spousal support
- Child custody, parenting time, and child support agreement
If you and your spouse can’t agree with the abovementioned matters, a divorce mediation lawyer can help. In this case, the legal professional takes no sides and will help you and your spouse find win-win solutions to your disputes. Once you arrive at these resolutions, the mediator may further assist by preparing a document outlining and explaining your and your spouse’s agreements.
Fault-Based Grounds for Divorce
If you can’t file for an uncontested divorce in Virginia, your other option is to file for a contested divorce. Under Code of Virginia § 20-91, some of the grounds for contested divorce include the following:
- Adultery
- Cruelty
- Willful desertion or abandonment of the other
- Felony conviction, subsequent imprisonment, and discontinued cohabitation
If you don’t meet the separation requirement, you’d have to file for a contested divorce.
What Are Your Rights Under Virginia Divorce Laws?
Virginia divorce laws give one or both spouses rights in the following areas:
- Alimony or spousal support
- Child custody and parenting time
- Equitable distribution of marital property and debts
Alimony or Spousal Support
Alimony or spousal support is like a monetary allowance that a family court may require one spouse to pay the other. Some of the factors used by judges to determine this include:
- Length of marriage
- Each spouse’s earning capacity
- Standard of living during the marriage
Per Code of Virginia Title 20 Chapter 6 § 20-109, the spouse paying the alimony may request the court to terminate the spousal support if:
- The other party habitually cohabits with another person in a relationship
- The paying spouse experiences a material change in their circumstances (e.g., reaching retirement age)
- The paying spouse becomes ill or unable to work
If you need help modifying spousal support requirements (e.g., requesting a decrease), a Virginia divorce attorney can help build a case proving your eligibility.
Child Custody and Parenting Time
Virginia family courts prioritize the best interests of the children of a divorcing/divorced couple. They encourage parents to be as involved in their kids’ lives as possible. For this reason, they usually provide both parents custodial and parenting time rights.
Equitable Distribution of Marital Property
For marital property distribution, U.S. states are either equitable distribution states or community property states. As Smart Asset points out, most states belong to the former (including Virginia), whereas only nine are community property states.
So, if you file a divorce in Virginia, you have the right to a fair and just portion of the marital property, although this doesn’t automatically equate to a 50% share.
Don’t Face Divorce Alone
Divorce in Virginia, even an uncontested one, can be a stressful experience filled with emotional turmoil. But you don’t have to face it alone. Our highly experienced and understanding Fairfax, VA, lawyers at Kearney, Freeman, Fogarty & Joshi, PLLC, can provide you with the assistance and support you need and deserve.
For over three decades, we’ve done the same for our clients throughout North Virginia. Trust us to give you compassionate guidance as we help you throughout the divorce process.
Speak with us today so we can get started on your complimentary initial consultation.
