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virginia divorce laws

Virginia divorce laws can be complex. Individuals must meet certain eligibility requirements even before filing for divorce. And unless a couple agrees on how to split property and assets, a judge will divide these as fairly as the court sees fit. Child support and alimony may also play a role. But as emotionally straining as divorce can be, it doesn’t have to be a financial nightmare. This article will explore how to file for divorce in Virginia and what you can do to protect your finances, whether you’re the plaintiff (person filing) or defendant. As always, finding a financial advisor can serve as a valuable asset to either party going through divorce in Virginia.

How to File for Divorce in Virginia

In order to file for divorce in Virginia legally, the plaintiff must have been a legal resident of the state for at least six months before taking legal action. The plaintiff can file for divorce in the city or county where both spouses live or where the defendant resides. But below is where it may get complicated from a legal standpoint.

If the couple has no children from the marriage (including adopted ones), both spouses must have been separated for at least six months. In legal terms, separation means both spouses must have different sleeping arrangements and have no physical relations. In addition, both must sign off on a separation agreement. This document must clearly detail how they want to divide property and assets. If they can’t come to a conclusion, the court will step in.

But if the couple had children from the marriage, spouses must have been separated for at least a year before filing.

Grounds for Divorce in Virginia

The person filing needs “grounds” for divorce as recognized by the court. In other words, Virginia is not a no-fault state. The legal “grounds” are quite specific. We’ve listed some examples below:

  • 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 can’t voluntarily live together after knowledge of this adultery. And 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 him or her bodily harm or The same goes for abandonment. The person affected must file within a year after this act, however.
  • Separation: Each spouse has their own sleeping quarters and there are no physical relations between them.

Process for a Divorce

The process of filing for divorce in Virginia varies depending on whether it’s 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 they’ll need a written separation agreement. This must also state that both parties can no longer live together in matrimony and have agreed to end their marriage. It also must outline a fair division of property.

If the couple has children, however, the couple must have been separated for at least a year. Their written separation agreement also must include an adequate solution to the future custody and support of their children.

The separation agreement lays the framework for an uncontested divorce. But as you can see, this can be mentally and emotionally complicated. You may want to seek a financial advisor and a divorce lawyer to help you produce this document in a way that ensures the best outcome for all involved.

With an uncontested divorce, a couple essentially has no separation agreement. In this situation, the couples can’t agree on points like division of property or custody of children. That’s when a judge steps in to make those decisions as he or she best sees fit.

But once a spouse meets the legal requirements for filing a divorce, the process becomes fairly straight forward. The plaintiff files the actual complaint which typically contains the following information:

  • Proof the defendant meets the residency requirement
  • Date and setting 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. An uncontested divorce typically takes two to three months before a judge finalizes it. Contested divorces usually take about 18 months. And if no party makes an appeal, contested divorces solidify 30 days after a judge signs the final decree.

How to Split Up Assets During a Divorce in Virginia

virginia divorce laws

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

But before moving forward, a judge must determine whether property is marital or separate.

Virginia divorce laws generally define marital property as acquired or earned during marriage. 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 an individual 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 with the other spouse’s name.

But after the judge differentiates property including financial assets 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, this doesn’t necessarily mean a down-the-middle cut on the overall value of these assets. The judge will consider several factors such as liquidity of each asset and who has contributed a larger share.

In addition, Virginia divorce laws also govern how the court may divide outstanding debt. The court can consider the following factors when making a decision.

  • Amount of debt each spouse holds
  • The 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 martial and which is separate under Virginia divorce laws. The court then measures the value of this property and divides it based on a system of equitable distribution. This means the judge takes a holistic look at the entire financial picture of both spouses involved and 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 a family house. If the couple had children who live in the home, for instance, the judge typically favors the spouse who provided the most childcare.

But even bad behavior can play a role here. So in a case of adultery or harm, the person affected can gain stake in how the court evaluates his or her share of marital property. Meanwhile, a spouse can also lose stake if he or she reduced the value of a contested piece of property. For example, a partner who intentionally wrecked the family car may have to pay for it down the road.

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 its duration. They can outline these details in their separation agreement as described above.

But if they can’t arrive at a conclusion, 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 just by considering the needs and economic conditions of both parties involved. And even though divorce laws in Virginia are not designed to punish the person who may have had the most fault in causing the divorce, the court considers all factors that made the marriage go south.

In some cases, bad behavior such as adultery and other acts listed under Virginia divorce laws means the victim can be spared from making any spousal support. However, divorce laws in Virginia 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.

But if the court justifies spousal support, it moves forward with deciding the amount and duration. It also determines how long payments should be made and how often. In all cases, the judge would consider several factors. We have listed some examples below:

  • All income and financial resources, including retirement plan assets
  • Standard of living during marriage
  • Physical and mental health condition 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 a 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 determined when initiating spousal support.

Under Virginia’s divorce laws, any custodial parent can file a child support claim through the Virginia Department of Social Services. And if you take Temporary Assistance for Needy Families (TANF) benefits, the Virginia Division of Child Support Enforcement (DCSE) will open a claim for you.

Thus, custodial parents don’t need to go through the courts to file for child support. In fact, the courts will use the same guidelines to determine child support terms and conditions.

Under Virginia state law, both parents must contribute to the support of their child regardless of marital status. In case of divorce, it’s designed to ensure the child undergoes the same economic conditions experienced while the parents were still married. So, the child support amount is based on the combined income of both parents. However, the law assumes the custodial parent who lives with the child already provides most of this support. This is why the other parent must make child support payments.

The agencies mentioned above determine the exact amount and frequency of payments based on a number of factors. For starters, they consider the financial resources of both parents. This includes income from wages, commission and pensions. It even includes benefits from Social Security or Veterans Affairs (VA), as well as disability and unemployment insurance. However, the agencies exclude public assistance and federal supplemental security income along with 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 who’s name the plan falls under.

As a marital asset, the court will consider several of the factors mentioned above when determining how to crack any nest eggs.

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

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

However, each plan administrator has its own guidelines on how to handle QDROs in order to comply with federal regulations. Both parties should be aware of these rules before entering a separation agreement or seeking the help of a court to settle a contested divorce.

The process is a bit different when it comes to an individual retirement accounts (IRA) or Roth IRA. In such cases, the plan administrator can divide assets as outlined on a Separation Agreement or a Final Order of Divorce and transfer them.

However, it’s crucial to note in these documents that the transfer be 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.

But after the transfer is complete, the person receiving the funds becomes legal owner of those assets. He or she would be responsible for any tax implications or penalties for future distributions as outlined in IRA withdrawal rules set by the IRS.

In either case, it’s best to choose a financial advisor to work with in order to avoid any unwanted tax penalties that may arise when moving around 401(k) and IRA funds from one spouse to the other.

Divorce and Estate Planning in Virginia

virginia divorce laws

If your will details that property be distributed to your spouse, Virginia divorce laws undo these provisions once 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 amounts to anywhere from one-third to one-half of the deceased’s estate depending of the number of children the deceased had if any. The surviving spouse may claim the elective share or what the will of the deceased originally designated to him or her.

But what if you don’t have a will? Under Virginia divorce laws, the surviving spouse must receive the deceased spouse’s entire estate unless the latter had children from a separate relationship. In this case, the children and surviving spouse would divide the estate.

But once 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, we recommend you speak to an estate planning lawyer. Both spouses should also brush up on Virginia inheritance laws as well as Virginia estate taxes.

Bottom Line

Navigating the turbulent waters of divorce can be an emotional and mental challenge. But it doesn’t have to wash away your finances and life savings. Be aware of how property and assets including retirement savings may be divided under Virginia divorce laws. A financial advisor can come in handy here. The state also has some very specific eligibility requirements an individual must meet before even filing for divorce. It’s important both plaintiff and defendant are aware of these rules as well as their implications. A divorce lawyer can serve as a crucial asset here.

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 qualified financial advisor doesn’t have to be hard. SmartAsset’s free tool matches you with up to three financial advisors in your area, and you can interview your advisor matches at no cost to decide which one is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
  • The average cost of a divorce can vary based on several factors. You may have to consider alimony, child support and dividing valuable assets. To help, we’ve published a report on five ways to safeguard your assets during a divorce.
  • A divorce may entirely change your financial situation. Moving forward, you should be aware of the rules to avoid any penalties. That’s why we produced a guide on filing taxes after divorce.

Photo credit: ©iStock.com/akinbostanci, ©iStock.com/baona, ©iStock.com/MicroStockHub

Javier Simon, CEPF® Javier Simon is a banking, investing and retirement expert for SmartAsset. The personal finance writer's work has been featured in Investopedia, PLANADVISER and iGrad. Javier is a member of the Society for Advancing Business Editing and Writing. He has a degree in journalism from SUNY Plattsburgh. Javier is passionate about helping others beyond their personal finances. He has volunteered and raised funds for charities including Fight Cancer Together, Children's Miracle Network Hospitals and the National Center for Missing and Exploited Children.
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