FAMILY LAW – CONTESTED DIVORCE
In Virginia, a contested divorce occurs when spouses cannot agree on the terms of their divorce, such as property division, spousal support, child custody, or child support. In such cases, the court will intervene to make determinations based on various factors, laws, and the circumstances of each party.
Here are the primary factors the court will consider when making decisions in a contested divorce:
1. Grounds for Divorce
Virginia allows for both no-fault and fault-based divorce:
- No-fault divorce: If the spouses have lived separately for at least 6 months (with a signed separation agreement) or 1 year (without a separation agreement), they can file for a no-fault divorce.
- Fault-based divorce: The court may consider fault if one spouse alleges that the other has committed certain behaviors like adultery, cruelty, or abandonment. Fault can influence property division or spousal support, as the court may view the spouse at fault less favorably.
2. Property Division
Virginia follows the principle of equitable distribution when dividing marital property. This means that the court divides property fairly, but not necessarily equally. The court considers factors such as:
- The length of the marriage.
- The age and health of both spouses.
- The financial and non-financial contributions made by each spouse to the marriage (such as a stay-at-home spouse raising children or a spouse supporting the other’s career).
- The value of the property and its impact on both parties’ financial future.
- Pre-marital property: Property that one spouse owned before the marriage generally remains separate unless it was commingled with marital property.
3. Spousal Support (Alimony)
Spousal support can be awarded based on several factors, including:
- The financial needs and abilities of both spouses.
- The standard of living during the marriage.
- The duration of the marriage (longer marriages may result in longer or more substantial support).
- The age and physical/mental condition of both spouses.
- The contributions to the marriage, both financial and non-financial (e.g., homemaking, supporting the other spouse’s career).
- The ability of the spouse requesting support to support themselves.
- The circumstances of the divorce, such as fault (e.g., adultery or cruelty).
4. Child Custody and Visitation
When children are involved, the court’s primary concern is the best interests of the child. The court will consider factors like:
- The age and health of the child.
- The physical and emotional needs of the child.
- The relationship between the child and each parent.
- Each parent’s ability to provide for the child’s needs (financially, emotionally, and physically).
- The willingness of each parent to foster a relationship with the other parent.
- History of domestic violence or substance abuse by either parent.
- The child’s preferences, if the child is mature enough to express them.
5. Child Support
The court uses Virginia’s Child Support Guidelines to determine child support, which considers the income of both parents, the number of children, and other factors like health insurance and childcare costs. These guidelines are meant to ensure that children receive adequate financial support post-divorce.
6. Debt Allocation
Along with dividing assets, the court also divides marital debts. The court will consider:
- The amount and nature of the debt (e.g., mortgage, credit card debt, loans).
- The financial situation of each spouse, ensuring that the division of debts is fair and reasonable.
- The duration of the debt and whether it was incurred during the marriage or for separate purposes.
7. Marital Misconduct (Fault Grounds)
If a spouse alleges marital misconduct (such as adultery, cruelty, or abandonment), the court may consider these factors when deciding:
- Spousal support: A spouse found guilty of fault may receive less or no spousal support.
- Property division: Fault can also impact how marital assets are divided, although Virginia does not automatically award a larger share to the spouse without fault. It’s one factor among many that can influence equitable distribution.
8. Other Factors the Court May Consider
The court has wide discretion and may consider any relevant factors that could affect fairness in the divorce, including:
- The mental and emotional state of each spouse.
- The conduct of the parties before and during the divorce proceedings.
- Collaborative divorce efforts, such as mediation or counseling, if they were attempted and either spouse’s willingness to settle amicably.
In a contested divorce in Virginia, the court will evaluate the evidence and arguments presented by both parties, taking into account the factors above. Since contested divorces can involve complex legal issues and emotional considerations, it’s often beneficial to consult with an experienced family law attorney who can help navigate the process, represent your interests, and ensure a fair outcome.