ROSE M. PANTAZIS, P.C.
COUNSELOR AND ATTORNEY AT LAW
TEL: (540) 659-3109
FAX: (540) 659-2160
There are two types of divorce actions that can be filed. The first is called Divorce from Bed and Board (a mensa et thoro). A divorce from “bed and board” can be awarded to the plaintiff only when the defendant has been cruel to the plaintiff or has deserted the plaintiff. The plaintiff can commence the action as soon as either ground exists, but a final divorce based either on cruelty and desertion cannot be granted until after a period of one year from the date of the acts complained of.
Cruelty or “reasonable apprehension of bodily hurt” are grounds pursuant to section 2-95 of the Virginia Code. Desertion or “willful desertion or abandonment” are grounds for a divorce from bed and board. Desertion does not occur when the husband and wife mutually consent to a separation.
There are advantages and disadvantages to seeking this type of divorce. The disadvantages include aggravation of the relationship, an increased likelihood of a counterclaim, and expenditure of time and money. The major advantage is that there is no waiting time required before filing.
The second type of divorce is a divorce a vinculo matrimonii. The grounds for this type of divorce include; (1) a separation of six months, if the parties have no minor children and have entered into a separation agreement, (2) A separation of 12 months, (3) Adultery, (4) Felony conviction and confinement in excess of one year, (5) cruelty or causing “reasonable apprehension of bodily hurt” after a period of one year from the date of the acts, and (6) willful desertion or abandonment after a period of one year from the date of the act.
The separation for 12 months does not require the parties to have a separation agreement but they must be living separate and apart. If the parties have not reached an agreement regarding the property or other various issues in the marriage then the parties can decide if the court should be asked to resolve them. If so, the issues that the plaintiff would like the court to determine must be pled in the complaint.
A final decree of divorce may be granted based on proof of adultery. While other grounds for divorce may be proven by mere preponderance of evidence, this ground requires a higher standard of proof called “clear and convincing” evidence. Specific allegations are particularly important in suits brought on the ground of adultery. The plaintiff should be as specific as possible with names, dates, and locations of the adultery. Finally, a final decree of divorce may be granted for desertion or abandonment after one year has elapsed since the act alleged.
Once you have selected the type of divorce you would like to institute you must file a divorce complaint. The court cannot grant relief concerning an issues not pled therefore you should ensure that all claims are pled.
There are court costs and filing fees associated with the initiation of a divorce that vary from city to city. After the divorce complaint is submitted to the clerk’s office, the Defendant must be served. The Defendant then has 21 days to file an answer. Defendant’s answer will help to narrow the factual issues in the case. The Defendant may admit allegations, deny allegations, and allege facts that will provide the defendant’s version of events. The Defendant may plead facts setting out a defense to the plaintiff’s claims. The answer is due within 21 days after Defendant receives service of process. A defendant is “in default” if the defendant has not filed a pleading and (1) more than 21 days have elapsed after due service of a summons and complaint or (2) if service of the summons has been waived and then 60 days have elapsed after the date when the request for waiver was sent.
While a divorce suit is pending, a variety of motions can be made by the parties. The Court has the authority to grant temporary relief while the suit is pending. This relief is often referred to as “pendente lite relief.” Pendente lite relief can be awarded (1) to compel a spouse to pay any sums necessary for the maintenance and support of the petitioning spouse, including an order that the other spouse provide health care coverage for the petitioning, (2) to provide for the custody and maintenance of the minor children of the parties, including an order that either party provide health care for the children, and (3) to provide support for any child of the parties to whom a duty of support is owed.
Often one party will seek some form of spousal support through the divorce proceeding. The court will consider many factors including (1) the financial resources of both parties; (2) the standard of living established during the marriage; (3) the duration of the marriage; (4) the age and physical and mental condition of the parties and special circumstances of the family, and the extent that these factors make it appropriate that a party not seek employment outside the home; (5) monetary and non-monetary contributions of each party to the marriage; (6) property interests; (7) earning capacity; (8) opportunity and ability to acquire skills to enhance one’s earning capacity; (9) decisions made during the marriage regarding employment; (10) the extent to which either party has contributed to the attainment of education of the other party; and (11) tax consequences.
A party can receive spousal support before filing for divorce by filing a petition for spousal support with the Court Services Unit of the Juvenile and Domestic Relations District Court. The judge may issue a Spousal Support Order at the conclusion of this hearing.
The division of marital property and debts can be done only in the Circuit Court as part of a divorce. Marital property is all property you or your spouse got during the marriage and before you separated, unless you or your spouse got the property by inheritance or gift by a person other than the other spouse or unless the property can be directly traced to separate property for which it was exchanged. This includes real property (house and land), mobile homes, motor vehicles, household goods, savings, pensions, and other assets. During a divorce, either party may ask for equitable distribution of marital property.
Judges look at many factors in deciding how to divide marital property and debt. These include the contributions (both monetary and non-monetary) each party made to the marriage; the length of the marriage; the reasons the marriage ended; how you and your spouse used the marital property after you separated; your ages and your physical and mental conditions; how and when you got specific items of marital property; and the debts, needs, income and resources of each party. The judge will decide the fairest way to divide the marital property. Each party will receive between 0% and 100% of the property or anything in between. Virginia law does not assume marital property should be divided 50-50.
When the mandatory waiting period has elapsed, certain information is obtained, usually in a lawyer’s office. This is called a deposition. The deposition is recorded and typed or printed out. Sometimes this is done before the Judge in an oral hearing. This is information must be provided to the court in order for it to grant the divorce. This deposition, a proposed Final Decree of Divorce, and other papers are sent to the Judge for review. If everything is in order, the Judge signs the Final Decree and you are divorced.
Once the judge hears all matters having to do with the separation and divorce, he or she will then render a decision about each issue. A final decree of divorce must then be drafted and submitted to the court to be entered by the judge. Generally speaking, a few weeks after your divorce decree has been entered, your divorce will be final.
Nothing on this website is legal advice or creates an attorney- client relationship. Please contact us to schedule a consultation.