Divorce Laws in Virginia for People Married Over Five Years
By Bernadette A. Safrath
Whether spouses are married for five years or 30 years, Virginia's divorce laws are the same. The laws set forth who is eligible for a divorce in Virginia, the grounds for divorce, the procedure for dividing marital assets and the eligibility for spousal support. The duration of a marriage is really only considered when a court is determining the amount and duration of spousal support.
In Virginia, either spouse can file for divorce, if the state's residency requirement is met. Virginia requires that at least one spouse be a state resident for no less than six months before filing. The spouse who wishes to begin the divorce files a complaint in the state circuit court in the county where the couple resided.
Grounds for Divorce
Virginia has six grounds for divorce. The grounds of adultery and conviction of a felony with a sentence of at least one year do not have a waiting period. The ground of felony conviction is only valid if the filing spouse did not continue to live with the convicted spouse after he was released from prison. The remaining four grounds for divorce require a waiting period of one year from when the incidents occurred before filing. These grounds are desertion or abandonment, constructive abandonment, in which one spouse forces the other out of the marital residence, physical cruelty, abuse and separation. Separation is a no-fault ground in which the spouses voluntarily separate for one year and then agree to file for divorce. If the spouses do not have minor children and have already signed a separation agreement, the waiting period for the ground of separation can be reduced to six months.
Division of Property
During the divorce proceedings, the court will classify all the property owned by one or both spouses and then divide it between them. Separate property is anything acquired by one spouse prior to the marriage, any gift or inheritance received by one spouse during the marriage, and any property purchased during the marriage with funds considered separate property. Generally, each spouse will be entitled to receive his separate property during the division of assets.
Virginia is an equitable distribution state, which means that the court will divide the property fairly, but not necessarily equally between the spouses. The court considers several factors when dividing assets, including the value of each spouse's separate assets, each spouse's role in the marriage, each spouse's income, and which spouse has custody of any children of the marriage. These factors are used to determine who will maintain possession of the marital home.
Spousal support is the only aspect of divorce Virginia in which the duration of the marriage is truly relevant. The support is designed to lessen the burden on a financially weaker spouse after the divorce. Virginia courts set the amount and duration of alimony on a case-by-case basis, examining several factors. These include the spouses' ages, the spouses' health conditions, each spouse's income, assets and financial needs and what each spouse contributed to the marriage, monetarily or otherwise. Lastly, one of the main factors considered when determining duration of spousal support is duration of the marriage. Generally, the longer the marriage, the longer the support will be owed. In cases of the longest marriages -- usually those marriages that lasted more than 20 years -- spousal support is permanent, often because the receiving spouse was a homemaker and caretaker of the children and likely was out of the workforce for many years.
Bernadette A. Safrath is an attorney who has been writing professionally since 2008. Safrath was published in Touro Law Center's law review and now writes legal articles for various websites. Safrath has a Bachelor of Arts in music from Long Island University at C.W. Post, as well as a Juris Doctor from Touro College.