Divorce is a stressful and difficult experience for anyone who has to experience it. It can be overwhelming. Part of managing that stress is understanding the legal avenues you may have towards divorce. Having knowledge of divorce in the eyes of the law can give you an anchor to lean on when dealing with the things you may not understand about your partner or your divorce. Here are the basics you need to understand for Virginia Divorce Law.
Family Law is State Law
Divorce falls under the statute of family law, which is determined on a state by state basis. While every state has to conform to some federal requirements, the specifics can vary wildly from state to state. What may be allowed in North Carolina, may not be in Virginia. If you are doing research on divorce, make sure that it is state-specific to avoid confusion.
One way state-specific laws can affect a divorce proceeding is a residency requirement. In order to file for divorce in Virginia, at least one of the spouses must be a bona fide resident of the state. This simply means that they have lived here for 6 months prior to the divorce proceedings. Issues can arise if only one spouse is a resident in regards to the jurisdiction for spousal support, so consult an attorney if you think this may be the case.
No-Fault vs. Fault
In Virginia, traditional divorce required a “fault”, or a reason for divorce to be included in the proceedings. Faults include adultery, the conviction of spouse of a felony offense and confinement for over 1 year, among others. Adultery is technically against the law in Virginia and can be common grounds for divorce. Adultery must be proven factually and go beyond mere suspicion to be considered legal grounds for divorce. Additionally, resuming sexual relations with a spouse after knowledge of adultery is considered condoning, or forgiving, the act by Virginia law.
There is a way to file for a “no-fault” divorce in Virginia, but it isn’t as simple as some other states. Virginia requires a provable Separation of one year, or 6 months if the couple has no children before the divorce can be officially filed with the courts. This can be done through a legal separation agreement, or simply by stopping cohabitation for the required time. During the period of separation, the spouses are still legally married. Participating in sexual activities with someone else during the separation period could be considered adultery, which absolutely could affect divorce proceedings.
Child Custody in Virginia
The bond between parent and child is one of the most important things in life. Unfortunately, divorce has a large effect on this bond. Child custody is who gets to have responsibility for a child’s physical health and life decisions, such as which school they attend.
In Virginia, custody laws do not have a default preference for mother or father. It is ultimately up to a Virginia judge to decide if shared custody is favorable for the child or not. Judges use the following factors to help them decide custody:
The mental condition and age of parents and the child
Cooperation between parents and settle differences
A previous history that could be bad for the child moving forward, such as illegal drug use, or truthful complaints from Child Protective Services (CPS)
What the child wants, particularly if they are over 13
As you can see, there are a lot of factors that come into play when it comes to child custody and this is only a partial list. The judge’s job is to cater to the best interests of the child.
Divorce is a difficult time and to the average person, the legal frameworks can seem obscure and confusing. Hopefully, you feel at ease knowing you have some of the basic knowledge. If you are going through a divorce consider reaching out to a trained Virginia attorney with experience in family law. We can walk you through the intricacies and fight for the best possible outcome for you and your family.
Call our Virginia Divorce lawyers at (757) 926-0078 if you’re going through a divorce.