Divorce Laws in Virginia: What You Need to Know

Divorce can be a challenging and emotional process, so understanding the legal framework is crucial for anyone considering this step in Virginia. The state’s divorce laws are designed to address various aspects of the dissolution of marriage, including grounds for divorce, property division and child custody arrangements. In Virginia, couples can file for either a fault-based or no-fault divorce, with the latter requiring a period of separation before proceedings can begin. Fault-based divorces, on the other hand, may involve allegations such as adultery or cruelty. Before you get a divorce in the Old Dominion State, this is what to know about Virginia divorce laws.

A financial advisor can serve as an invaluable partner during a Virginia divorce, helping you better prepare for your new financial future.

How to File for Divorce in Virginia

To file for divorce in Virginia, the plaintiff must have been a legal resident of the state for at least six months before taking legal action, and at least one spouse must still live in the state. The plaintiff can file for divorce in the city or county where both spouses live or where the defendant resides.

If the couple has no biological or adopted children from the marriage, both spouses must be separated for at least six months. However, if the couple has children from the marriage, the spouses must be separated for at least one year before filing. Legally, separation requires both spouses to maintain different sleeping arrangements with no physical relations.

Additionally, both parties must sign off on a separation agreement, detailing how they want to split assets. If they cannot agree, the court will step in.

Legal Representation in Divorce Proceedings

Legal representation can play a pretty crucial role in divorce proceedings.

Divorce lawyers help navigate the complex legal landscape, guiding on issues such as property division, child custody, alimony and child support. With their personal representation, both parties can better understand the implications of Virginia divorce laws while protecting their financial and emotional well-being throughout the process.

Grounds for Divorce in Virginia

The person filing for divorce needs grounds recognized by the court.

Virginia is not a no-fault state and requires approved legal grounds such as:

Adultery. One spouse can file for divorce if the other committed adultery by having intimate relations with another party outside of the marriage. In addition, both parties cannot voluntarily live together after knowledge of this adultery. A spouse must file within five years of learning about this violation.
Felony. A spouse can file for divorce in Virginia if his or her spouse committed a felony after the marriage that led to at least one year of imprisonment.
Cruelty. Someone can file for divorce if a spouse has caused them bodily harm or fits the legal definition of abandonment. However, the affected party must file within a year after this act for this to be legally valid.
Separation. Each spouse maintains their own sleeping quarters and have no physical relations.

This is valid for full divorce.

You can also receive a partial divorce called a divorce from bed and board. This becomes an equitable property distribution that also includes custody and other financial matters that apply when the couple doesn’t cohabitate. However, this does not end the marriage, and neither party can remarry.

Process for a Divorce in Virginia

The process of filing for divorce in Virginia varies depending on whether the divorce is uncontested or contested. Uncontested divorces involve separation, as outlined above.

If the couple has no children, they can file for divorce after six months of separation, but this requires a written separation agreement, outlining a fair division of property. It must also state that both parties can no longer live together in matrimony and have agreed to end their marriage.

If the couple has children, the couple must be separated for at least one year. Their written separation agreement must include adequate arrangements for future custody and child support.

The separation agreement lays the framework for an uncontested divorce, but this can be financially and emotionally complicated. You may want to seek a divorce financial advisor and a divorce lawyer to help you ensure the best outcome for all involved.

With an uncontested divorce, a couple essentially has no separation agreement. In this situation, couples can’t agree on key issues, such as property division or child custody. That’s when a judge steps in to make those decisions for them.

Once a spouse meets the legal requirements for filing a divorce, the process becomes fairly straightforward. The plaintiff files the actual complaint, which typically contains several key details:

Proof of residency
Date and location of the marriage
Names and dates of birth of any minor children from the marriage
Claim for divorce based on recognized grounds

Afterward, the defendant submits a response admitting or denying the claims. The accused can also file a counterclaim.

Contested divorces usually take about 18 months, while uncontested divorces can be completed in as little as two to three months after the required separation period.

How to Split Up Assets During a Divorce in Virginia

During a divorce proceeding in Virginia, a judge will review all marital property before dividing it between the two spouses. This includes physical property, such as a home or family car, as well as financial assets like retail investments, brokerage accounts and even outstanding debt.

However, before moving forward, a judge must determine whether the property is marital or separate:

Marital property. Virginia divorce laws generally define marital property as acquired or earned during the marriage.
Separate property. It defines separate property as property earned or acquired individually before the marriage. This can also include a gift made directly to an individual or a family heirloom passed down directly to an individual spouse, even if that spouse was married. An inheritance passed down to a spouse also qualifies as separate property.

However, separate property can become marital property during the course of a marriage. This can include inheritance money deposited into a joint savings account or a car retitled in the other spouse’s name.

After the judge differentiates property as marital and separate, he or she will move on to divide these assets as fairly as the court deems fit. Keep in mind, however, that equitable distribution doesn’t necessarily mean a down-the-middle cut on the overall value of these assets. The judge will consider several factors, such as the liquidity of each asset and who contributed the larger share.

Virginia divorce laws also govern how the court may divide outstanding debt. The court can consider the following factors when determining who is responsible for debt after divorce:

Amount of debt each spouse holds
Basis for each debt
Property used as security

How to Divide Property in Virginia After Divorce

Just as with financial assets, a judge determines what physical property is marital and which is separate under Virginia divorce laws.

The court then determines the value of this property and divides it according to equitable distribution. This means the judge takes a comprehensive look at the entire financial picture and then divides property as fairly as possible under Virginia divorce laws.

The court may consider several factors when determining how to divide physical property, such as the family residence.. If the couple had children who live in the home, for instance, the judge typically favors the spouse who provided the most childcare.

However, bad behavior can play a role here. For example, in a case of adultery or harm, the affected party may gain a stake in how the court evaluates their share of marital property.

A spouse can also lose a stake if they reduce the value of a contested piece of property. For example, a partner who intentionally wrecked the family car may have to pay for it later.

How to Manage Child Support and Alimony Under Virginia Divorce Laws

If alimony is involved, Virginia divorce laws allow spouses to decide on the amount and how long it lasts. Your separation agreement can outline these details.

However, if you cannot come to an agreement with your spouse, the court will step in. Virginia divorce laws allow any spouse to request spousal support from the other to prevent financial hardship.

The court will determine whether alimony is appropriate by considering the needs and economic conditions of both parties. Virginia laws are not designed to punish the person with the most fault in the divorce, but it does consider all the factors that made the marriage go south.

Spousal Support

Negative behavior, such as infidelity, can result in the denial of spousal support.

However, Virginia divorce laws allow some exceptions. If you make considerably more money than your spouse, for instance, you may be liable for spousal support, even if your partner cheated on you.

If the court does rule in favor of spousal support, it will also calculate the amount and determine how long it lasts. It also determines how long payments should be made and how often.

To do this, it considers several factors:

All income and financial assets, including retirement accounts
Standard of living during marriage
Physical and mental health conditions of both spouses
State of any children involved
Earning capacity of both parties
Potential tax consequences following divorce proceedings

If the receiving spouse experiences a material change, such as the loss of a job, Virginia divorce laws permit him or her to request an increase in payments. The court would grant or deny that request based on some of the same factors it used when determining the initial spousal support.

How Alimony Is Calculated in Virginia

Virginia law provides for different types of alimony, whether they are temporary or permanent:

Pendente lite support. Pendente lite support is temporary alimony awarded during the divorce proceedings to help the lower-earning spouse manage expenses until a final decision is made.
Permanent alimony. Permanent alimony, on the other hand, may be granted for an indefinite period, particularly in long-term marriages where one spouse may have sacrificed career opportunities for the family.
Rehabilitative alimony. The court may also award rehabilitative alimony, which is intended to support a spouse while they gain the necessary skills or education to become self-sufficient.

Child Support

Under Virginia’s divorce laws, any custodial parent can file a child support claim through the Virginia Department of Social Services.

If you take Temporary Assistance for Needy Families (TANF) benefits, the Virginia Division of Child Support Enforcement (DCSE) will open a claim for you. This means custodial parents don’t need to go through the courts to file for child support. Instead, the courts use the same guidelines to determine child support terms and conditions.

Under Virginia state law, both parents must contribute to their child’s support, regardless of marital status. In the event of divorce, it’s designed to ensure the child experiences the same economic conditions as during the time the parents were still married.

Therefore, child support is based on the combined income of both parents. Because the law assumes the custodial parent who lives with the child already provides most support, the other parent must make child support payments.

The agencies mentioned above determine the exact amount and frequency of payments based on several factors. For starters, they consider both parents’ financial resources, including the following income sources:

Wages, commissions and pensions
Social Security benefits
Military Veterans Affairs (VA) benefits
Disability
Unemployment insurance

However, the agencies exclude public assistance, federal supplemental security income and other such benefits.

State agencies determine the final amount based on the number of children involved and a percentage of the combined income for both parents.

401(k) and IRA Plans and Divorce in Virginia

Under Virginia divorce laws, the court generally defines retirement plan assets as marital property regardless of whose name is on the plan. As a marital asset, the court will consider several of the factors above when determining how to distribute funds.

However, Virginia divorce laws prevent any spouse from getting more than 50% of the account’s marital share. Instead, it defines marital share as the total interest earned between the date of marriage and date of separation.

The extent of the division depends on several factors, such as the type of retirement plan. In the case of employer-sponsored retirement accounts, such as 401(k) or 403(b) plans, the court will issue a Qualified Domestic Relations Order (QDRO). This allows the employer sponsoring the plan to distribute an employee’s account to their spouse based on a circuit court’s ruling or a separation agreement.

Each plan administrator has its own guidelines for handling QDROs.

Individual Retirement Accounts (IRAs)

The process is a bit different for individual retirement accounts (IRAs) and Roth IRAs. In such cases, the plan administrator may divide and transfer assets pursuant to the Separation Agreement or Final Order of Divorce.

It’s crucial to note in these documents that the transfer is a trustee-to-trustee transfer from one spouse’s account to another. This type of IRA rollover protects the party involved from tax penalties. The receiving spouse can also open a new IRA and have the other spouse’s IRA administrator set up the same kind of rollover.

After the transfer is complete, the person receiving the funds becomes the legal owner of those assets. They are then responsible for any tax implications or penalties for future distributions as set by the IRS.

In either case, it’s best to find a financial advisor who can help you avoid any unwanted tax penalties that may arise during this process.

Divorce and Estate Planning in Virginia

If your will details that your property goes to your spouse after your death, Virginia divorce laws automatically revoke these provisions once the divorce is finalized.

However, this statute raises a major issue if you pass away during the divorce proceedings. In this situation, Virginia divorce laws allow the surviving spouse to claim an elective share of the deceased spouse’s estate.

Generally speaking, the elective share can be anywhere from one-third to one-half of the deceased’s estate, depending on the number of children the deceased had. The surviving spouse may claim the elective share or the designation provided by the deceased’s will.

If there is no will, the surviving spouse receives the deceased spouse’s entire estate unless the deceased had children from a separate relationship. In this case, the children and the surviving spouse would divide the estate.

Once the divorce is final, a surviving ex-spouse gets nothing. However, an individual may succeed in placing provisions in a will that override this law, thereby allowing a spouse to receive property, regardless of marital status.

In this situation, it is wise to speak to an estate planning attorney. They can help ensure you fully understand Virginia inheritance laws, as well as Virginia estate taxes.

Tax Implications of Divorce in Virginia

Divorce changes how former spouses are taxed at both the state and federal levels.

Once a divorce is finalized, spouses can no longer file a joint return and must use a new filing status based on their household situation. This shift can affect tax brackets, eligibility for tax credits and deductions, and tax liability, especially if incomes differ significantly.

Property division during a Virginia divorce generally does not create an immediate tax bill. Any assets transferred between spouses under a divorce decree usually move without triggering taxes at the time of transfer. However, the recipient assumes the asset’s existing tax basis, which becomes relevant later if the property is sold and capital gains are realized.

Support payments follow specific tax rules. Child support is not treated as income and does not affect either party’s tax return beyond cash flow considerations. Spousal support agreements finalized under current federal law do not create a deduction for the paying spouse and are not treated as taxable income for the recipient, which can influence how settlements are structured.

Retirement assets raise longer-term tax considerations. Court-ordered transfers allow retirement funds to move between spouses without early withdrawal penalties, but taxes are still owed when distributions occur later. How these accounts are treated – divided between spouses, rolled over or withdrawn – can influence your taxable income for years after the divorce, making tax planning an important part of the overall settlement process.

Bottom Line

A model house under an umbrella, sitting on a stack of coins.

Navigating the turbulent waters of divorce can be an emotional and mental challenge, but it doesn’t have to wash away your life savings. Be aware of how property and assets, including retirement savings, may be divided under Virginia divorce laws. A financial advisor can help you create a long-term financial plan going forward for life after divorce.

Tips on Protecting Your Finances During a Divorce

In most contested divorce cases, Virginia courts look at retirement assets as marital property. So you may want to seek a financial advisor to help you take the best course to protect the savings you’ve worked so hard to save. Finding a financial advisor doesn’t have to be hard. SmartAsset’s free tool matches you with vetted financial advisors who serve your area, and you can have a free introductory call with your advisor matches to decide which one you feel is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
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