Divorce – The Basic Framework

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 Filing for Divorce

You may have heard of “grounds” for divorce or states that have “no-fault” divorce. Grounds for divorce typically consist of cruelty, adultery, or desertion. When you file for divorce on grounds, you are alleging that your spouse acted in a way that violated the obligations spouses owe each other in a marriage.

In a no fault divorce, you are not alleging that your spouse engaged in some sort of bad behavior. You are simply asking for divorce. In Virginia, you must have been separated for at least one year before filing for a no-fault divorce.[1] You cannot file for a no fault divorce before you have this required separation period. However, if you allege grounds for divorce, you do not have to wait until one year of separation in order to file. A divorce can be filed as soon as grounds exist. (However, even if you file before the one year separation period, the court will likely not resolve your case until at least one year after the separation.)

In some states, you may initiate a separation by legally filing documents to begin the separation. Virginia does not have a mechanism for this. Virginia simply requires that you and your spouse have lived “separate and apart” for the required period before filing. Once you file for divorce, the separation period will subsequently be established with testimony (either live testimony or in some cases written statements made under oath) that is provided to the court. This testimony is generally provided by one of the parties and a non-party witness who can corroborate the separation.

Issues Dealt With in Divorce

When you file for divorce, there are a number of issues that may be decided by the court. These include:

  • Dissolving the marriage
  • Dividing assets (called “Equitable Distribution” in Virginia)
  • Awarding spousal support (sometimes referred to as “alimony”)
  • Awarding child support
  • Determining custody and visitation for minor children

A court does not automatically deal with every issue. Each party may ask the court to deal with particular issues in his or her complaint. For example, one party may file a complaint for divorce asking for the court to deal only with dissolving the marriage and dividing the assets, but not spousal support. In this instance, the other party would typically file a counter complaint or similar type pleading asking the court to also address spousal support.

[1] You may also file for divorce if you have been separated for only six months and: 1) you and your spouse have no minor children; and 2) you have a signed, written agreement resolving the rights of the parties arising out of the marriage.