Divorce FAQ

Common Questions about Divorce

Is it possible to have a Virginia marriage annulled instead of divorce?
- The concept exists in Virginia but most people do not qualify for it. The code section is 20-89.1.

Categories of Annulment

The 1st category of marriages that can be annulled are those where there is some defect in the marriage process itself.
- An annulment may be possible, if the parties do not have a license or if the person officiating was not properly authorized to perform the marriage rites or if the parties lacked the legal capacity to enter into a marriage because they were too young or were mentally handicapped.
- Bigamous and incestuous marriages can be annulled.
- An annulment is possible, if one of the parties was not free to marry because a previous spouse is still alive and there has been no divorce.
The second category of marriages that can be annulled are those where some important fact was unknown to one of the parties.
- Undisclosed impotence, a felony conviction, pregnancy by another, fathering a child by another where the child is born within 10 months of the wedding, and a prior career in prostitution can be grounds for an annulment.
The last category of marriages that can be annulled are those where there was some fraud. The elements of fraud are:
1. a false representation
2. of a material fact
3. made intentionally and knowingly
4. with intent to mislead
5. reliance by the party misled, and
6. resulting damage to the party misled.
The fraud must be proved by clear and convincing evidence, which is a higher standard of proof than is required in most civil cases. An example of this would be a marriage between an immigrant and a citizen where the immigrant sought the marriage solely for the purpose of being allowed to legally immigrate to the United States and the spouse didn’t know it.
Most couples will not have grounds for an annulment. And even when the grounds are present, there are limitations on when they can be asserted. So cases where an annulment is possible and less expensive than a divorce are rare. A Virginia divorce attorney can advise you whether you qualify.

That said, every year we have a few cases where our client is eligible for an annulment. The most common situation is when it is discovered that the other party was not divorced from their previous spouse at the time of the marriage. It is easy to prove and readily granted in such cases.

When can I get spousal support?
- The judge cannot award permanent spousal support until they have made a ruling about the division of property. The decision on how property is to be divided is one of the factors the judge has to consider in deciding spousal support.

Basic Steps in the Divorce Process

The Complaint

A divorce case begins when either the husband or the wife files a paper with the court called a “Complaint for Divorce” and has it served on the other spouse. The party who files first is called the plaintiff and the other party is called the defendant. These names depend entirely on who files their paper first.

The defendant has 21 days to file a paper called an answer. After the defendant files an answer, or the time passes without any action by the defendant, the case can proceed. In rare cases, your lawyer may advise you to file another kind of response to the complaint.

Pendente Lite Orders

Either spouse can request a preliminary hearing to establish certain ground rules while the case is pending. The question of who gets to live in the marital residence, who will have temporary custody of the children, whether the marital assets will be frozen while the case is pending, and whether support must be paid are resolved at that hearing. The judge makes decisions about these things and their ruling is called a “pendente lite order.” It stays in effect until it is modified, the case is dismissed or there is a final divorce decree. If the case is dismissed, all temporary orders become irrelevant because they no longer have any legal effect.

Frequently, one party will be served with the complaint for divorce and a “Notice of Pendente Lite Hearing.” It is imperative that you appear at that hearing, preferably with an attorney. If you cannot hire a attorney in time, go anyway and ask the judge to give you time to hire one. This can be risky, because in some instances the judge will make a temporary order even though you might have had only a few days advance warning that there would be a hearing. It is best to consult with an attorney if you believe that your spouse may file a divorce case.

The Trial

Virginia Code Sections 20-91 and Virginia Code Sections 20-95 require that the specific grounds for divorce be present before a divorce decree can be issued. Therefore, before the divorce decree can be entered, the court must decide whether there is sufficient evidence that the grounds for divorce exist.

The courts in Virginia use four methods for reviewing the evidence:

a hearing in open court
referral to a commissioner
depositions
written affidavits.

In relation to the methods above, the use of the commissioner method has decreased. Use of depositions have long been the standard procedure in the Peninsula cities of Hampton, Newport News, and York-Poquoson. Hearings in open court are most common in Virginia Beach and Norfolk. In 2012, the Virginia legislature added the fourth method of proving the case with written affidavits. If your case is in the Virginia Beach Circuit Court, your attorney may find the court has retained requirements that still make the written affidavits method difficult to use. The written affidavits method tends to be easier in Norfolk. The legislation is likely to have less of an impact in Newport News and in Hampton.

Issuance of a Divorce Decree

The final step is the issuance of a divorce decree by the court. This document sets forth all of the decisions the judge has made about property, support, and custody and says that the parties are divorced. If you and your spouse have a property settlement agreement, the final divorce decree will in most cases order you both to comply with the terms of your agreement. This is significant because it makes it possible to enforce your agreement through the court’s contempt power which can include putting one party or the other in jail for violating the agreement.

Whether your case is in Hampton, Virginia Beach, York-Poquoson, Chesapeake, Norfolk, Portsmouth, Chesapeake or Newport News, Bob Jeffries is a divorce and child custody lawyer who is familiar with all of these courts and their judges and is able to help represent you in your case.

Child Support

Everyone is legally obligated to support the children they bring into the world. If you are the father or the mother, you must contribute to the cost of supporting your child. If you are not the biological parent and have not adopted the child, or have had your parental rights terminated, you have no support obligation.

Paternity

The threshold question is whether you are the biological parent. For obvious reasons, men are the ones whose parentage can be uncertain. The term for a man who the mother alleges to be the father of a child is called the “putative father.” In previous decades, the process of establishing paternity depended heavily on the the testimony of the mother which was unreliable in some cases.

Genetic Testing

In the current climate, genetic testing has eliminated most doubt about paternity. The Virginia Code allows a “putative father” the right to have paternity determined by genetic testing. Virginia Code Section 20-49.4.

We refer clients who want genetic testing to a firm called Labcorp to perform the DNA test. Labcorp has facilities throughout the country and, particularly in interstate cases, it is simply convenient to deal with them.

In 2001, the law in Virginia was amended to allow a man who has been determined to be the father of a child to have that determination set aside if genetic testing establishes that he is not the father. Virginia Code Section 20-49.10.

If you are a “putative father” you may be asked if you want to acknowledge paternity. This is not something that you should do without truly thinking about it. Once you admit to being the father of a child, you have obligated yourself to support that child until they are eighteen years old. That support amount can be a very large sum of money and the court can put you in jail if you don’t pay it. If you have acknowledged paternity while knowing that you are not the father of the child, you cannot have that determination of paternity set aside. You should not acknowledge paternity unless you are certain that you are the father or have made a carefully considered decision to acknowledge paternity despite having doubts.

Check out these articles for additional information:

Calculating the Amount
Departure from the Guidelines
Contempt
Where to File
DCSE

Equitable Distribution in Virginia

The question of what to do about the property acquired, along with, the debts accumulated during the marriage is often settled by an agreement. If the parties are unable to agree, the court has the power to order the division of the parties’ property and debts. The code section is 20-107.3 and the process is commonly called “equitable distribution” because the court is required to distribute the marital assets and liabilities “equitably.”

Although the statute lists many factors that the court is to consider, including whether one party was more responsible for the failure of the marriage than the other, there is a strong bias in favor of an equal distribution of the assets. There is an equally strong bias in favor of unequally distributing the liabilities. For example, frequently, the husband is the one to take away the majority of the debts accumulated during the marriage if he has the higher income.

In the majority of Virginia divorces, the parties are able to agree on the division of the marital assets and liabilities and they put the terms to which they have agreed in a separation agreement. In the cases where a failure to agree in the division of the marital assets and liabilities, it is due to a high marital net worth and uncertainty about the value of the assets.

Pension and Profit Sharing

Pension and profit sharing rights that were accumulated during the marriage are marital property and subject to being divided.

Military Pensions

In the Hampton Roads cities of Newport News, Hampton, Virginia Beach, Norfolk, Chesapeake, Suffolk, Portsmouth and York County – Poquoson, many divorces involve a military pension.

The formula for dividing a military pension is the number of months of marriage while the spouse is in the military, divided by the total number of months of military service, times 50%, times the retired pay.

A common misconception is that the spouse only acquires an interest in the pension after 10 years of marriage. This is a myth. No particular number of years is required for the spouse to be entitled to share in the pension. However, the 10 year mark is significant, but for another reason. After 10 years of marriage during the service member spouse’s military service, the Virginia divorce court can order that the spouse’s share be paid to them directly from the Defense Finance and Accounting Service (“DFAS”).

Negotiating Equitable Distribution

The best way to approach your negotiation over equitable distribution is to make a three-column spreadsheet.

The first column will be for the marital assets and liabilities.
The second & third column is for each party listed and for what each party is to receive when the assets and liabilities are divided.
Follow the accounting convention of listing all of the assets at the top and then put in a line for the totals.
List the liabilities next and put in a separate total line for them.
Lastly, put in a line labeled net worth and make it the total value of the assets less the total value for the liabilities, both for the marital partnership and for each of the spouses.

Then…

List all of the marital assets and their values in the first column.
For each item that appears in the list, put its value in the column for the spouse who will be getting it in the divorce.
Do the same with the debts.

In the end your spreadsheet will show one net worth for the marital partnership, one for the wife after the divorce, and one for the husband after the divorce.

Lifetime Pensions

Lifetime pensions are valued by estimating both the likely retired pay and the life expectancy of the spouse who has earned the pension and then determining, using a mathematical formula, what the cash value of that income is, as of the date of separation.

Household Items

Ordinary household furnishings can be valued at the cost of the item. However, a more realistic valuation is what the item would sell at an estate sale. Especially valuable furniture may need to be appraised before you can fairly allocate it to one spouse or the other.

Cash, Publicly Traded Securities, Businesses

Cash and publicly-traded securities are easy. Businesses, particularly personal service businesses like a law or medical practice, can be difficult to value. Cash businesses present lots of room for dishonest efforts to value them too cheaply.

Regardless of whether your divorce is in Portsmouth, Suffolk, Newport News, Virginia Beach, Norfolk, Hampton, Chesapeake or York-County-Poquoson, Bob Jeffries is a Virginia divorce lawyer who can help you through through the process of ensuring that you receive your fair share of the marital assets.

Grounds for Divorce in Virginia

Virginia law allows divorce on the following grounds:

If the spouses have lived separate and apart without any cohabitation and without interruption for one year.
If the spouses have entered into a separation agreement and they have no minor children and they have lived separately and apart without cohabitation for six months without interruption.
For adultery; or for sodomy or buggery committed outside the marriage;
Where one spouse has been convicted of a felony and sentenced to serve more than a year in prison and there has been no cohabitation after the other spouse learned of the conviction.
Where either spouse has been guilty of cruelty, caused the other to reasonably fear bodily harm, or deserted the other, the innocent party may have a divorce after a year.

The first two grounds listed are the most commonly used for divorce. The Virginia requirement of a long period of separation is an effort to discourage hasty decisions. When a couple resumes sexual relations or resides together again, the clock will be reset on the separation period to zero. The time will be calculated from the last occasion where there was cohabitation.

There are other provisions that are less frequently invoked and you should have your attorney explain them to you. In some cases, they may offer some advantages over the more commonly used provisions.