Divorce FAQs

What are the Grounds for Divorce in Virginia?

There are two types of divorce in Virginia.  Divorce From Bed and Board (a mensa et thoro) in which a husband and wife are separated and are unable to remarry and Divorce From the Bond of Matrimony (a vinculo matrimonii) which is a complete divorce after which the parties may remarry.

The grounds for divorce from bed and board are:

Willful desertion and abandonment - Two elements must be satisfied, the actual breaking off of matrimonial cohabitation and the intent to desert in the mind of the deserter.

Cruelty and reasonable apprehension of bodily harm - It must be established that the conduct of the at fault party rendered marital cohabitation unsafe and involved danger to life, limb, or health.  The fact that one of the parties has developed an unpleasant demeanor or uses coarse and abusive language toward the other generally is not enough.  In addition, denial of sexual relations by itself, if other marital duties are performed does not constitute cruelty.

The grounds for divorce from the bond of matrimony are:

Separation or "No Fault" divorce - A no fault divorce may be granted when the parties have lived separate and apart without cohabitation or interruption for a period of one year or more.  If there are no minor children of the parties and the parties have entered into a property settlement agreement a divorce may be granted when the parties have lived separate and apart without cohabitation or interruption for a period of six months or more.  It is important to note that the Bill of Complaint for Divorce can not be filed in a no fault case until the end of the statutory waiting period.

Adultery, sodomy, or buggery - Adultery is sexual intercourse by a married individual with a person not his or her spouse.  Sodomy involves oral or anal intercourse with a member of the same or opposite sex.  Buggery is bestiality.

Conviction of a felony - An absolute divorce may be granted 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 and cohabitation has not been resumed after the knowledge of the confinement.

What is a Property Settlement Agreement?

A Property Settlement Agreement or "PSA" is a written agreement between the parties which settles property, custody, visitation and support issues.  When the PSA is affirmed, ratified and incorporated into the final decree of divorce it is enforceable as an order of the court.  The PSA may address all issues or only a portion of the issues and leave the rest for the court to decide. 

How is Spousal Support Determined?

If the divorce is granted on fault grounds, the party at fault may be barred from receiving support.  If no fault ground exists the court will weigh the relative needs of the parties and the ability of the party required to provide support to pay.  Virginia Code Section 20-107.1 requires the court to consider each of the following factors when deciding the amount of support to award:

  1. The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;
  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 any special circumstances of the family;
  5. The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;
  6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
  7. The property interests of the parties, both real and personal, tangible and intangible;
  8. The provisions made with regard to the marital property under 20-107.3;
  9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;
  10. The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;
  11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market;
  12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and
  13. Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

How is Child Support Determined?

Unlike spousal support which can be subjective and is determined by the court after weighing numerous factors, the determination of child support is a relatively straight-forward process. 

In cases where one parent has primary custody and the non-custodial parent has custody for less than 90 days a year, the incomes of the parties are combined, certain allowable expenses such as child care costs and hospitalization cost for the children are taken into consideration and the required child support amount is determined using the tables provided in Virginia Code Section 20-108.2.  The liability of each parent is then determined based on the relative income of the parties. This guideline amount is presumed correct by the statute.

In cases where the non-custodial parent has custody for more than 90 days, the percentage of time the child spends with each parent is also taken into consideration.

A child support amount which differs from the guideline can be agreed upon by the parties in a Property Settlement Agreement, but will be scrutinized by the court to ensure that the best interest of the children are being served.