Virginia

Summary of Virginia Divorce Law:

Court fees:

§ 20-91. Grounds for divorce from bond of matrimony; contents of decree.

1. A divorce from the bond of matrimony may be decreed:
   1. For adultery; or for sodomy or buggery committed outside the marriage;
   2. [Repealed.]
   3. Where either of the parties subsequent to the marriage has been convicted of a felony, sentenced to confinement for more than one year and confined for such felony subsequent to such conviction, and cohabitation has not been resumed after knowledge of such confinement (in which case no pardon granted to the party so sentenced shall restore such party to his or her conjugal rights);
   4. [Repealed.]
   5. [Repealed.]
   6. Where either party has been guilty of cruelty, caused reasonable apprehension of bodily hurt, or willfully deserted or abandoned the other, such divorce may be decreed to the innocent party after a period of one year from the date of such act; or
   7. [Repealed.]
   8. [Repealed.]
   9. 1. On the application of either party if and when the husband and wife have lived separate and apart without any cohabitation and without interruption for one year. In any case where the parties have entered into a separation agreement and there are no minor children either born of the parties, born of either party and adopted by the other or adopted by both parties, a divorce may be decreed on application if and when the husband and wife have lived separately and apart without cohabitation and without interruption for six months. A plea of res adjudicata or of recrimination with respect to any other provision of this section shall not be a bar to either party obtaining a divorce on this ground; nor shall it be a bar that either party has been adjudged insane, either before or after such separation has commenced, but at the expiration of one year or six months, whichever is applicable, from the commencement of such separation, the grounds for divorce shall be deemed to be complete, and the committee of the insane defendant, if there be one, shall be made a party to the cause, or if there be no committee, then the court shall appoint a guardian ad litem to represent the insane defendant.
      2. This subdivision (9) shall apply whether the separation commenced prior to its enactment or shall commence thereafter. Where otherwise valid, any decree of divorce hereinbefore entered by any court having equity jurisdiction pursuant to this subdivision (9), not appealed to the Supreme Court of Virginia, is hereby declared valid according to the terms of said decree notwithstanding the insanity of a party thereto.
      3. A decree of divorce granted pursuant to this subdivision (9) shall in no way lessen any obligation any party may otherwise have to support the spouse unless such party shall prove that there exists in the favor of such party some other ground of divorce under this section or § 20-95.
2. A decree of divorce shall include each party’s social security number, or other control number issued by the Department of Motor Vehicles pursuant to § 46.2-342.

(Code 1919, § 5103; 1926, p. 868; 1934, p. 20; 1952, c. 100; 1960, c. 108; 1962, c. 288; 1964, cc. 363, 648; 1970, c. 311; 1975, c. 644; 1982, c. 308; 1986, c. 397; 1988, c. 404; 1997, cc. 794, 898.)

Are Separation Agreements Enforceable Under Virginia Law?

Yes. In fact, separation agreements are “favored” under Virginia law. In the case of Martin v. Martin, (Va.App. 12-12-2006), the Court of Appeals of Virginia ruled that:

“[M]arital property settlements entered into by competent parties upon valid consideration for lawful purposes are favored in the law and such will be enforced unless their illegality is clear and certain.”
Cooley v. Cooley, 220 Va. 749, 752, 263 S.E.2d 49, 52 (1980) (citation omitted); Derby v. Derby, 8 Va. App. 19, 25, 378 S.E.2d 74, 77 (1989).

Can a Separation Agreement be Used as the Grounds for a Divorce in Virginia?

In cases where there are no children, the existence of a separation agreement actually reduces the separation period required for divorce under Virginia law from 12 to 6 months. In this regard, Section 20-91 of the Virginia Code provides as follows:

(9) (a) On the application of either party if and when the husband and wife have lived separate and apart without any cohabitation and without interruption for one year. In any case where the parties have entered into a separation agreement and there are no minor children either born of the parties, born of either party and adopted by the other or adopted by both parties, a divorce may be decreed on application if and when the husband and wife have lived separately and apart without cohabitation and without interruption for six months. A plea of res adjudicata or of recrimination with respect to any other provision of this section shall not be a bar to either party obtaining a divorce on this ground, nor shall it be a bar that either party has been adjudged insane, either before or after such separation has commenced, but at the expiration of one year or six months, whichever is applicable, from the commencement of such separation, the grounds for divorce shall be deemed to be complete, and the committee of the insane defendant, if there be one, shall be made a party to the cause, or if there be no committee, then the court shall appoint a guardian ad litem to represent the insane defendant.

What Are the Benefits of Entering into a Marital Separation Agreement?

By setting forth your agreement on issues such as the distribution of marital property, alimony, and child support, you can substantially reduce the cost and time required to obtain a divorce in Virginia. You can also avoid the stress and uncertainty of having complete strangers decide these important issues. In addition, couples frequently find that by entering into an agreement, they decrease the bitterness and animosity that frequently arises in divorce. Several studies have shown that on average, couples who sign marital separation agreements reduce the cost of divorce by more than 65%. In addition, as noted above, the existence of a separation agreement reduced the separation period required for divorce from 12 to 6 months in cases that do not involve minor children.

When can a Couple Sign a Marital Separation Agreement?

In Virginia, a marital separation agreement may be drawn before or after you have filed for divorce - even while you and your spouse are still living together.

Non-Titled Spouse is Entitled to Percentage Award:
In Virginia (as in most states) a pension is distributed in divorce though a percentage award of the benefits. This helps avoid the expensive and burdensome process of requiring a calculation of the pension’s present value. When the pension is in pay status, both spouses receive their respective shares of the payments.

Determining the Percentage Award:
The percentage award to the non-titled spouse is determined by multiplying the marital share (which is generally defined as the number of years of creditable retirement service during the marriage) multiplied by a percentage (not to exceed 50%). The foregoing number is then multiplied by the pension benefits.

Court’s Authority to Direct that Spouse be Designated as Beneficiary:
Virginia courts also have the authority to order the titled spouse (also known as the participant spouse) to designate the non-titled spouse/former spouse as a beneficiary during the life of the beneficiary of all or a portion of any survivor or annuity plan. However, the Court’s authority is subject to any limitations or rules under federal ERISA statutes. The Court’s authority to direct designation of the non-participant spouse as beneficiary is specifically set forth in the Section 20-107.3(G)(2), which states as follows:

To the extent permitted by federal or other applicable law, the court may order a party to designate a spouse or former spouse as irrevocable beneficiary during the lifetime of the beneficiary of all or a portion of any survivor benefit or annuity plan of whatsoever nature, but not to include a life insurance policy. The court, in its discretion, shall determine as between the parties, who shall bear the costs of maintaining such plan.

Preparation/Submission of QDRO Forms:
The distribution of pension benefits is effectuated through a specific type of order: the Qualified Domestic Relations Order (QDRO). Even if the parties enter into a marital settlement agreement that provides for a division of pension benefits, the non-titled spouse must ensure that a QDRO is entered by the Court and submitted to the Plan Administrator. It is recommended that a proposed QDRO be submitted to the Plan Administrator for review and approval prior to the entry of an equitable distribution order. Thereafter, it is important for the non-titled spouse to obtain written confirmation from the Plan Administrator after receipt of a certified copy of the QDRO. At bottom, a non-titled spouse should make every effort to ensure that the QDRO terms are acceptable to and will be honored by the plan.

Authority of Virginia Courts to Divide Marital Property:

In divorce proceedings that involve equitable distribution (division) of marital property, Virginia courts have the authority to direct either a lump-sum payment or periodic fixed payments due and payable on specific dates. This authority is specifically conferred upon Virginia Courts by Section 20-107.3(D) of the Virginia Code. If the Court orders a lump sum, the payee spouse is entitled to interest at either the interest rate set forth in the Court’s Order or, if the order makes no provision for interest, at the rates specified in Section 6.1-330.10 of the Virginia Code. In determining how to distribute marital property, the Virginia courts may consider the tax consequences that will result from the Court’s award and/or in connection with the division or transfer of marital property.

Marital Property: Definition and Exceptions to the Rule:

Generally, assets that are acquired during the period of the parties’ marriage are considered “marital” asserts that are subject to equitable distribution. However, there are certain exceptions to that rule. One exception is personal injury and workers’ compensation awards. Awards received by one of the spouses for personal injuries or workers’ compensation claims are considered “hybrid” assets. The amounts that were (or are anticipated to be) received are divided into two parts. The first part consists of the portion of the award that is attributable to the injured party’s loss of wages. The second part of the award consists of the amount attributable to medical losses and pain and suffering. The first portion (lost wages) is marital, while the second portion (pain and suffering) is separate property of the party receiving the award.

Transmutation of Premarital Assets Under Virginia Law:

Generally, under Virginia law, pre-marital assets (assets owned by one of the spouses prior to the marriage) are considered his or her “separate” property. Such pre-marital assets are generally not subject to equitable distribution. However, there are exceptions. The most notable exception is where a pre-marital assets increases in value during the marriage as a result of the active efforts of one or both of the spouses. This is sometimes referred to as “transmutation”. The active increase in value (appreciation) that occurred during the marriage is considered marital, to be valued and, thereupon, divided in accordance with the statutory equitable distribution factors. A party asserting that appreciation of a marital asset is marital must demonstrate substantial efforts. A miniscule effort would not justify the transmutation of an otherwise pre-marital asset into the marital estate.

Apportioning the Parties’ Debt in a Virginia Divorce Case

In light of today’s challenging economic environment, many divorce cases focus on how the parties’ debts and liabilities will be apportioned. The Virginia Code confers authority upon courts to classify and divide debts in divorce cases. Sections 20-107.3(A)(4) and (5) of the Virginia Code provide:

4. Separate debt is (i) all debt incurred by either party before the marriage, (ii) all debt incurred by either party after the date of the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent, and (iii) that part of any debt classified as separate pursuant to subdivision A 5. However, to the extent that a party can show by a preponderance of the evidence that the debt was incurred for the benefit of the marriage or family, the court may designate the debt as marital.
5. Marital debt is (i) all debt incurred in the joint names of the parties before the date of the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent, whether incurred before or after the date of the marriage, and (ii) all debt incurred in either party’s name after the date of the marriage and before the date of the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent. However, to the extent that a party can show by a preponderance of the evidence that the debt, or a portion thereof, was incurred, or the proceeds secured by incurring the debt were used, in whole or in part, for a nonmarital purpose, the court may designate the entire debt as separate or a portion of the debt as marital and a portion of the debt as separate.