DIVORCE AND SEPARATION

Updated April 2017

DIVORCE AND SEPARATION IN VIRGINIA

JB LANGLEY-EUSTIS LAW CENTER

The issues surrounding divorce and separation can be very

complex. This pamphlet provides general information on

Virginia laws and important issues in Virginia, but is NOT a

substitute for consulting with an attorney.

Remember, the Air Force has several cost-free resources

dedicated to helping military families work through trying

times. If, however, you decide to proceed with a separation or

divorce, the following information will give you an idea of the

process, and will hopefully answer some of your questions.

SECTION I: DIVORCE

Divorce is the legal separation of husband and wife,

effected by the judgment or decree of court, which totally

dissolves the marriage or suspends its effects so far as

concerns the cohabitation of the parties.

There are two types of divorce in Virginia. A bed and board

decree is a partial or qualified divorce under which the bond

of marriage is not entirely dissolved. Under this type of

divorce, a husband and wife are legally separated from each

other, but are not permitted to commit adultery with another

person or marry again. A complete divorce from the bond of

matrimony dissolves the marriage totally and reestablishes

individual “singlehood” such that a party may marry again.

Even if both husband and wife agree on a divorce, legally

sufficient grounds or prescribed reasons must exist and be

proven to the satisfaction of the court.

1. Can I get a divorce in Virginia?

In order for a military member or spouse to file for a

divorce in Virginia, he/she must reside in Virginia for at least

six months prior to filing for the divorce, or be a resident of

the Commonwealth of Virginia.

2. Grounds for divorce

To get a divorce in Virginia, there must be grounds, that is,

there must be a reason why the court should grant the divorce.

Without grounds, the court will not grant the divorce. There

are five grounds for divorce in Virginia, some require waiting

periods:

a. Adultery or Sodomy Outside Marriage. To be granted

a divorce for adultery or sodomy outside the marriage, clear

and convincing proof must be presented to show that the

spouse did engage in sexual relations with another. If the

guilty spouse can show that the other spouse “condoned” the

adultery by voluntarily living with the guilty spouse after

knowing of the adultery, divorce will not be granted on this

ground. The adultery must have occurred within five years of

the filing of the suit for divorce. Adultery committed after the

couple is legally separated can be grounds for divorce. No

waiting period is required before filing for divorce under this

ground. See Va Code Ann. §§ 20-91(A)(1), 20-94.

b. Conviction of a Felony. If either spouse is convicted of

a felony and is jailed on a sentence that exceeds one year, the

other spouse may immediately seek a divorce so long as he/she

has not lived with the guilty spouse after knowledge of the

confinement. See Va Code Ann. § 20-91(A)(3).

c. Desertion and Cruelty. One year after the act(s) in

question, a divorce may be granted.

d. One-Year Separation. (*Applies if you have children

under the age of 18 with your spouse.) You may file for a

divorce if you and your spouse have lived apart continually for

one year without any cohabitation. If you get back together

(even for one day) with the intent to reconcile, the time period

will start over.

e. Six-Month Separation. (*Applies if you have NO

children under the age of 18 with your spouse.) If you have

no minor children born of the marriage, enter into a separation

agreement, and live separate and apart for six months, a

divorce will be granted. If you get back together (even for one

day) with the intent to reconcile, the time period will start

over.

SECTION II: LEGAL SEPARATION

A “legal separation” is simply the term used to describe

when spouses live apart, but with some legal action taken. The

legal action is either a separation agreement or a decree

(decision) of a court. Separated couples are still married, so

all support obligations continue. Also, sexual relations with

someone other than a spouse are still considered adultery.

While some other states require couples to file for separation,

this is not required in Virginia; only one of the specific

grounds listed above is necessary to get a divorce.

1. Separation Agreements/Settlement Agreements

These agreements are contracts between the spouses that

spell out the rights and responsibilities of each party during

the separation and in the event of a divorce. The agreement

should address all issues including child support, custody and

visitation, spousal support, and division of marital property

and debts. However if the parties can agree on some, but not

all matters, it may still be beneficial to have a separation

agreement for the matters spouses can agree on. There are

advantages to having a separation agreement. The main

advantage is that you will likely decide the terms of your

separation and divorce. Without the agreement, the judge will

decide the terms of your separation and divorce. The

attorneys at the Langley Law Center do not prepare

separation agreements, although we can review

Updated April 2017

agreements. We recommend that you see a civilian attorney

to ensure that all of your rights are protected.

SECTION III: PROPERTY DIVISION

Virginia is not a community property state, so marriage

does not result in each spouse owning one-half of the other

spouse’s property. Instead, all property is classified as either

“marital” or “separate” and the court will make an equitable

distribution of marital property. See Va. Code Ann. § 20-

107.3.

1. Separate Property - See Va Code Ann. § 20-107.3 A1.

a. All property acquired before the marriage;

b. Property acquired by inheritance or gift (from a person

other than the spouse); and

c. Proceeds from the sale of separate property, so long as

the property has been maintained separately.

2. Marital Property – See Va. Code Ann. § 20-107.3 A2.

a. Property titled in both names; and

b. Property acquired during the marriage which is not

separate property. All property acquired during the

marriage is presumed to be marital property unless there is

a clear indication to the contrary. The classification of the

property as marital does not necessarily mean that the

parties have an equal interest in the property, just that the

court may divide it.

If a valid separation agreement has been reached, the court

will not divide the marital property. The parties, therefore,

have the power to make all property division decisions in

the separation agreement.

In dividing or “equitably distributing” the marital property,

the court considers the following:

(1) The contributions, both monetary and otherwise, of

each spouse to the family;

(2) The contributions, both monetary and otherwise, of

each spouse to the acquisition and maintenance of

marital property;

(3) Duration of the marriage;

(4) Ages & mental condition of parties;

(5) Circumstances leading to the divorce;

(6) How and when marital property acquired;

(7) Debts of each spouse, when the debts were acquired,

and what property secures the debts;

(8) Liquidity;

(9) Tax consequences to each party;

(10) Use or dissipation of funds in anticipation of

divorce;

(11) Other necessary and appropriate factors.

SECTION IV: RETIREMENT PAY

In Virginia, retirement pay is always divisible regardless of

how long the parties were married. There is no requirement,

however, that retirement pay be divided. The court will look

at the factors listed above to determine if retirement pay

should be divided. If the court does divide retirement pay,

they will look at the above factors in determining what

percentage of retirement pay a dependent spouse will receive.

If the marriage lasted ten years, and the ten years overlapped

with ten years of creditable service toward retirement, the non-

military spouse is eligible to receive his/her portion of the

retirement pay directly from the Air Force.

SECTION V: SPOUSAL SUPPORT/ALIMONY

A spouse may get an award of support after the separation

or divorce. The court will look to see who is at fault in the

divorce, and will usually not grant support to a party at fault.

If no party is at fault, the court will look at the following to

determine whether to award support:

a. Income and earning capacity of each party;

b. Needs of each party;

c. Standard of living established during the marriage;

d. Age and condition of both parties;

e. Contribution, monetary and otherwise, of each party to

the family; and

f. Other necessary and appropriate factors.

Note: It is not standard practice for judges to grant continual

Spousal Support for marriages of short duration.

Note: The information in this handout is general in nature.

It is not to be used as a substitute for legal advice from an

attorney regarding individual situations.