Virginia divorce law governs how marriages end in the Commonwealth, establishing the legal requirements, procedures, and rights involved when couples decide to dissolve their marriage.
The law requires you to have legally acceptable grounds, specific reasons recognized by courts, before you can file for divorce. You cannot simply decide you want a divorce without meeting one of Virginia's statutory grounds.
Virginia Code § 20-91 lists all recognized grounds for divorce from the bond of matrimony. These grounds fall into two categories: fault-based grounds blaming one spouse's behavior, and no-fault grounds recognizing that the marriage has irretrievably broken down.
No-Fault Divorce
The most common ground for a Virginia divorce is living separate and apart without cohabitation for the required time period. This no-fault ground requires:
One year of separation for most couples, or six months of separation when you have no minor children and have signed a separation agreement resolving all divorce issues.
The separation must be continuous without interruption. You cannot live together or resume sexual relations during the separation period, as even a single instance of cohabitation can restart the clock.
At least one spouse must have intended the separation to be permanent from the beginning. This distinguishes divorce-related separation from temporary separations for work, trial separations to work on the marriage, or other non-permanent living arrangements.
Fault-Based Grounds
Virginia law recognizes several fault grounds allowing immediate filing without waiting for separation periods:
- Adultery means voluntary sexual intercourse with someone other than your spouse. Virginia law also includes sodomy or buggery committed outside the marriage. Proving adultery requires "clear and convincing evidence" with corroboration from sources other than just the accusing spouse's testimony.
- Cruelty encompasses physical violence, abuse causing reasonable apprehension of bodily hurt, or severe mental anguish, making continued marriage intolerable. A single shocking incident can suffice, though courts typically require a pattern of cruel behavior.
- Desertion or abandonment occurs when one spouse willfully leaves the marital home without justification and with the intent to end the marriage permanently. After one year from the desertion date, this becomes grounds for absolute divorce.
- Felony conviction serves as grounds when a spouse is convicted after marriage, sentenced to more than one year in prison, actually confined, and the couple hasn't resumed cohabitation after the innocent spouse learned of the confinement.
Constructive Desertion
Constructive desertion occurs when one spouse's conduct makes continued cohabitation impossible, forcing the other spouse to leave. This might include refusing sexual relations without justification while failing to fulfill other marital duties, or engaging in abuse or cruelty that makes the home unsafe.
The spouse claiming constructive desertion must prove they were forced to leave due to the other's intolerable conduct, not that they chose to leave voluntarily.
What Are Virginia's Residency Requirements?
To file for divorce in Virginia, at least one spouse must meet the residency requirement. One spouse must have lived in Virginia for at least six months immediately before filing the divorce complaint.
This residency requirement ensures Virginia courts have proper jurisdiction over your divorce. The spouse filing must be a Virginia resident on the day the divorce case is filed with the court.
Where to File
You file your divorce complaint in the Circuit Court of the county or city where either spouse resides. Virginia gives you options; you can file where you live or where your spouse lives, providing flexibility in choosing your venue.
This matters because different Virginia jurisdictions handle cases differently, with varying court schedules, local procedures, and judicial approaches to divorce issues.
How Does Equitable Distribution Work?
Virginia follows equitable distribution, meaning courts divide marital property fairly based on numerous factors, not automatically 50/50. This system gives judges discretion to award unequal shares when circumstances justify it.
Before dividing property, courts must classify all assets and debts as marital, separate, or hybrid. This classification critically determines what gets divided and what remains with one spouse.
- Marital property includes all property and debts acquired during marriage from the date of marriage until the date of separation, regardless of how title is held. Both spouses have rights to marital property even when only one name appears on ownership documents.
- Separate property encompasses assets owned before marriage, property received during marriage by gift or inheritance specifically to one spouse, and property acquired during marriage in exchange for separate property. Separate property remains with the spouse who owns it and isn't subject to division.
- A hybrid property has both marital and separate components, requiring courts to determine what portion is separate versus marital. This often occurs when separate property appreciates during marriage due to marital efforts or marital funds improve the separate property.
Equitable Distribution Factors
When dividing marital property, Virginia courts consider statutory factors including monetary and nonmonetary contributions of each spouse, duration of the marriage, age and physical/mental condition of spouses, circumstances contributing to the dissolution of marriage, how and when property was acquired, and debts and liabilities of each spouse.
Courts also examine the liquid or nonliquid character of marital property, tax consequences of division to each party, use or expenditure of marital property by either spouse for nonmarital purposes (dissipation), and any other factors the court finds necessary for a fair and equitable division.
What About Spousal Support?
Virginia courts may award spousal support (also called alimony or maintenance) based on numerous statutory factors. Unlike child support, Virginia has no mandatory guideline formula for spousal support, though courts often reference advisory guidelines.
Statutory factors courts consider include incomes and earning capacity of the parties, ages and physical/mental conditions of spouses, standard of living established during marriage, duration of the marriage, contributions monetary and nonmonetary to the family's well-being, and property interests including marital property awarded through equitable distribution.
Courts also examine the circumstances and factors contributing to the dissolution, particularly any fault grounds, and the time and manner in which property was acquired during the marriage.
Adultery's Impact
Proven adultery bars the guilty spouse from receiving spousal support except when denial would constitute "manifest injustice" based on the relative degrees of fault and the economic circumstances of the parties.
This creates powerful financial consequences for adultery, making proof of this fault ground extremely valuable when it would otherwise result in spousal support obligations.
Types of Support
Virginia recognizes several types of spousal support including temporary (pendente lite) support during divorce proceedings, rehabilitative support for a limited time to allow a dependent spouse to gain education or training, and permanent support continuing indefinitely (though modifiable based on changed circumstances).
How Does Child Custody Work?
Virginia courts determine child custody and visitation based solely on the child's best interests. Virginia Code § 20-124.3 lists statutory factors courts must consider.
Virginia recognizes legal custody (the right to make major decisions about the child's health, education, and welfare) and physical custody (where the child primarily lives). Both types can be awarded solely to one parent or jointly to both parents.
There is no presumption that children are better off with mothers versus fathers. Courts evaluate each parent based on the statutory factors without gender-based assumptions.
Custody Factors
Statutory factors include the age, physical and mental condition of the child, relationship between each parent and the child, each parent's role in the child's upbringing, each parent's willingness to support the child's relationship with the other parent, and the reasonable preference of the child if of sufficient age and maturity.
Courts also consider any history of family abuse, each parent's ability to meet the child's needs, and any other factors the court deems relevant to the particular case.
How Does Child Support Work?
Virginia law establishes child support guidelines, creating a rebuttable presumption about appropriate support amounts. Virginia Code § 20-108.2 provides the guideline calculation based on both parents' gross incomes and the number of children.
The guidelines use an Income Shares Model, recognizing that children should receive the same proportion of parental income they would have received if the family remained intact. Both parents' incomes are combined, and child support is calculated based on this combined income and the number of children.
Each parent's share is then determined based on their percentage of the combined income. The noncustodial parent (or parent with less custodial time) typically pays their share to the other parent.
Deviations from Guidelines
Courts can deviate from guideline support when appropriate, based on factors including children's extraordinary medical, dental, or educational expenses, each parent's independent financial resources, the standard of living the child would have enjoyed if the marriage continued, and any other factors the court finds relevant.
Deviations must be supported by written findings explaining why guideline support would be unjust or inappropriate in the particular case.
What Is a Separation Agreement?
A separation agreement is a written contract between spouses resolving divorce-related issues, including property division, debt allocation, spousal support, child custody and visitation, and child support.
These agreements allow spouses to control outcomes through negotiation rather than leaving decisions to a judge. Well-drafted separation agreements can resolve all divorce issues, making the divorce uncontested and dramatically faster.
Requirements for Validity
Valid separation agreements must be in writing and signed by both spouses. While witnesses aren't strictly required, having the agreement notarized provides better evidence of validity.
The agreement should comprehensively address all divorce issues to prevent future disputes. Courts generally enforce valid separation agreements unless they're unconscionable or dramatically unfair to one party.
For the six-month no-fault divorce option, the separation agreement must exist before the six-month separation period ends. You cannot create an agreement after six months of separation and then immediately file; the agreement must be in place during the separation.
What Are Defenses to Divorce?
Virginia law recognizes several defenses to fault-based divorce grounds:
- Recrimination means the spouse seeking divorce is also guilty of fault grounds. If proven, this can bar divorce on fault grounds, though it doesn't prevent no-fault divorce based on separation.
- Condonation occurs when the innocent spouse, knowing of the other's fault, forgives it and resumes marital relations. This forgiveness bars later divorce based on the forgiven conduct, though new fault acts can revive the claim.
- Connivance means the spouse seeking divorce encouraged or arranged the other spouse's fault conduct. Procuring or arranging adultery bars divorce based on that adultery.
- Collusion involves both spouses agreeing to fabricate grounds for divorce. Courts won't grant divorces based on collusive arrangements.
For adultery specifically, additional defenses include the five-year statute of limitations (adultery must have occurred within five years of filing) and cohabitation after knowledge (continuing to live together as spouses after learning of adultery bars using it as grounds).
How Long Does a Virginia Divorce Take?
Divorce timelines vary dramatically based on whether your case is contested or uncontested. Uncontested divorces where spouses agree on all issues can be finalized in as little as one to three months after meeting separation requirements.
Contested divorces requiring court intervention to resolve disputes take much longer, typically 12 to 24 months or more, depending on court schedules, complexity of issues, and whether appeals are filed.
Fault-based divorces often take longer than no-fault divorces due to the need to prove fault through evidence and testimony, though they allow immediate filing without waiting for separation periods.
The Divorce Process
The divorce process begins when one spouse files a Complaint for Divorce with the Circuit Court clerk. The other spouse must be properly served with the complaint and summons, giving them notice of the divorce action.
The served spouse has 21 days to file a response if served in Virginia, or longer if served out of state. If they don't respond, the filing spouse may proceed by default.
In contested cases, both sides engage in discovery, exchanging financial information, answering written questions (interrogatories), producing documents, and potentially conducting depositions.
Many courts schedule pendente lite hearings early in the process to address temporary issues like custody, support, and use of marital property while the divorce is pending.
Cases ultimately resolve through settlement (possibly with mediation assistance) or trial, where a judge hears evidence and makes final decisions. After trial, the judge enters a Final Decree of Divorce officially ending the marriage.
Moving Forward with Virginia Divorce Law
Virginia divorce law establishes comprehensive rules governing how marriages end in the Commonwealth, from grounds for divorce and residency requirements to equitable distribution of property, spousal support determinations, child custody based on best interests, and child support calculated under statutory guidelines.
From filing your initial complaint through final decree, Virginia divorce law provides the framework for dissolving marriages fairly while protecting the rights of both spouses and prioritizing children's welfare. Whether your divorce proceeds through collaborative settlement or contested litigation, understanding the legal landscape helps you protect your interests and move forward toward your post-divorce future with confidence.