Frequently Asked Questions

Divorce

What are the grounds for divorce in Virginia?

In Virginia there are 5 different legally recognized reasons for divorce. They are separation; which can be for six months or year, depending on the circumstances; conviction of a felony with imprisonment for one year; adultery; desertion/abandonment; and cruelty.

Do You handle both No Fault and Fault-Based Divorce?

We happily handle both No-Fault and Fault-Based divorces.

How long do I have to live in Virginia before I can file a divorce action?

At least one party to the divorce needs to have lived in Virginia for six months prior to a divorce being initiated.

Why is the date of separation important?

The date of separation becomes important because it can become a benchmark date in the calculation of the value of marital debts and property. Additionally, for the purposes of calculating spousal support duration, the court may not consider post-separation time as part of the marriage.

How is the date of separation determined?

The date of separation is determined at the last time that one of the parties intended the marriage to be over without getting back together with the other party. If it is because one party went to jail, there needs to be clear evidence that at least one of the parties intended to separate prior to one party going to jail (though people facing this issue may be eligible for a felony divorce).

Does Virginia grant divorces based on marital fault?

Virginia courts absolutely can. But they generally do not. It is very rare for a Virginia court to grant a divorce based on any fault grounds, as the standards for evidence can be exceedingly difficult. In Virginia, you nearly have to have both you and a witness catch your spouse in flagrante delicto to prove adultery. Even then, the judge can exercise discretion not to award a divorce based on adultery. Even if it is unlikely, though not impossible, for your divorce to end up with a judge declaring your spouse as “in the wrong” at the end of the case, there are strategic reasons you may wish to pursue a fault-ground divorce, and fault factors can play into division of marital property as well as spousal support obligations.

Can I get maintenance or will I have to provide maintenance to my spouse?

If you have recently separated from your spouse and you make significantly less money than them, it is likely that you can get spousal support from them at least a little while, and perhaps much longer. The converse is also true- a spouse making a lot of money will likely have to pay some form of spousal support for at least a little while if the other party has good legal advice. Beyond that, there are 14 factors that go into deciding permanent spousal support, and you will need to sit down with an attorney to assess your spousal support case.

What if my spouse does not want the divorce?

Tough. Kind of. If your spouse does not want a divorce, they can challenge the divorce and raise legal obstacles. However, if you have been truly separated for a year, you are legally entitled to a divorce in Virginia, regardless of what your spouse wants.

How long do I have to live in Virginia to obtain a divorce?

At least one of the parties needs to have been a legitimate residence of Virginia for at least six months in order to file for a divorce in Virginia.

How do I prove fault for divorce?

Proving a fault divorce can be very difficult. In cases of desertion or cruelty, police records and/or text messages, etc. can be useful. To prove adultery, you will need evidence that your spouse actually had sex with another person. Not just that they spent the night at the house. This is further difficult to prove because adultery is a crime in Virginia, and therefore there are additional procedural protections available to someone accused of adultery (like pleading the fifth, for example). Of course, if your spouse gets pregnant by another man and it turns out the child isn’t yours, then you have a pretty provable case.

Can a couple become legally married by living together as man and wife under Virginia’s laws (common law marriage)?

Virginia does not recognize common law marriage, but there’s a twist- if you had a legally recognized common law marriage in another state, your common law marriage may be recognized in Virginia.

What is divorce from bed and board?

Same thing as a divorce a mensa et thoro. A divorce from bed and board is an incomplete divorce. It releases parties from the normal societal expectations of living together as a married couple (which isn’t very useful anymore because social expectations have changed a lot). While it sanctions the parties living separately, it does not free the other parties to go and marry other parties. In very limited circumstances, someone may pursue this incomplete divorce for religious reasons or other financial planning reasons.

Family Law

What is the definition of physical custody?

Physical custody defines where a child lives most of the time. It does not mean that parent has all control over the child whatsoever. Legal custody is the ability to be involved in decision-making for the children.

Does the mother always win sole physical and legal custody?

Virginia courts try to assess what is in the best interest of the child when determining child custody. Unless the parent is actually harmful to the child (a really high standard), the parent will often get at least some form of visitation with the child and often legal custody.

How does a court decide which parent will get custody of a child?

The Court will apply 10 different factors when determining who will get custody of a child. These factors are used to assist the court in determining what is best for the child.

What are the rights of grandparents to visit grandchildren?

Grandparents do not automatically have rights to visitation in Virginia, however they are considered “persons with a legitimate interest” with a child, meaning the court will at least let them put on a legal case to get visitation with grandchildren. Where both parents object to visitation, the grandparent will have to show actual harm to the child if visitation is not award to the grandparent.

How may a grandparent get custody of her grandchildren?

A grandparent can get custody of grandchildren through DSS placement in cases of neglect and abuse, through parental placement in some circumstances, and by filing through the Court in other cases.

What about spousal or child abuse protective orders?
There are three different kind of protective orders available- emergency, temporary, and permanent (which only last two years). Protective orders can be a powerful weapon against a domestic abuser, and an innocent person accused of abuse should seek legal counsel immediately to defend a protective order.

What is the role of mediation in a custody/visitation disputes?

Mediation is not currently often used in custody/visitation disputes where attorneys are involved in this area in Virginia. It may be used in a divorce situation where custody and visitation is also an issue.

What is the role of collaborative law in a custody/visitation?

Collaborative law is a strategy to minimize both strife and legal fees in divorces where both parties are reasonable, there are significant assets involved, and the parties want an amicable resolution. We always discuss a variety of applicable solutions for parties, and we will recommend a collaborative solution where appropriate for a case.

Can a parent refuse to allow visitation if child support is not paid?

No. Visitation and child support are considered separate issues, and the Court will not allow you to withhold visitation if support has not been paid. Likewise, you can face a contempt of court charge if you withhold support because you have not seen your child. Legal remedies like “show cause” orders may help fix the problem.

When can I modify custody?

You can modify custody any time 1) there has been a “change in circumstances” and 2) a change in visitation promotes the best interests of the child. Some courts interpret a change in circumstances more liberally than others.

What if we cannot agree on a custody arrangement?

If you cannot agree, that is what the court system is there for. We are happy to guide you through the legal system to help you get the best result for you and your child.

Who is eligible to adopt a child in Virginia?

Anyone is eligible to adopt in Virginia, though the courts might reject an adoption from someone under 18, or they otherwise are unfit to adopt.

Can a single (i.e., unmarried) person adopt in Virginia?

Virginia permits single parent adoption.

Can two persons not married to each other adopt a baby together?

Virginia requires people to be married to each other to adopt a child.

Can a same-sex couple adopt?

Yes, same-sex married couples have rights to adopt in Virginia.

Who may place a child for adoption?

Either a parent or a child-placement agency can place a child for adoption.

How does a prospective adoptive couple find a baby to adopt?

Adoptive parents can approach adoption agencies to find a baby to adopt, or may find children in their own communities- at church, within their extended family, or through a neighbor.

Are there restrictions on what prospective adoptive parents may pay to a birth parent?

Yes, anything that looks like “buying” a baby is prohibited in Virginia. Adoptive parents may only pay for medical care for the birthmother, and housing and other needs in limited circumstances. They may pay for her legal fees as well. There are serious legal consequences for making payments to a birthmother that are not explicitly permitted.

Are adoptive parents responsible for the medical and legal costs of the birth parents?

They are not automatically responsible for these costs, but they can agree to pay them.

Does the law allow the birth mother to revoke her consent to an adoption?

Yes, a birthmother can revoke her consent to adoption up to 10 days after the child’s birth. After that, the process becomes more complicated.

How are the rights of a birth father addressed in an adoption?

Before a child can be adopted, the court must be satisfied that the father has been notified of the adoption and consents to it.

What happens if the birth father is unknown or unable to be located?

The Putative Father Registry will have to be checked to see if anyone has registered as a potential child of this father. The adoption can still proceed if diligent efforts have been made to locate and/or identify the biological father.

What is the Putative Father Registry?

The Putative Father Registry is a registry maintained by the Department of Social Services for men who think they may have fathered a child to register to protect their rights.

Must the adoptive parents and birth mother provide identifying information to each other?

No. Adoptions can be closed, and the birth mother’s identifying information

Are the birth parents and adoptive parents required to maintain contact?

Not at all, but agreements can be made to maintain contact between the child and the birth parents in some circumstances.

Do adoptive parents need legal representation?

Adoptive parents will need a skilled attorney to process all the paperwork necessary to achieve an adoption as well as guide them through the process.

Slovensky Law is dedicated to protecting your rights and helping you get your life back on track.

Contact Slovensky Law to schedule a consultation