Leesburg Family & Divorce Attorney
If you are involved in a child custody dispute or CPS investigation, we are here to advocate for you! The Leesburg family & divorce attorneys at Simms Showers LLP will be with you every step of the way to present your case and defend your rights. We will give you the commitment, attention, and representation that your family deserves.
Divorce and Marriage Defense in Virginia
We know that a divorce can be one of the most difficult periods in a person’s life. We are here to help walk you through the legal impact of dealing with a broken marriage. The attorneys at Simms Showers, LLP will be with you to advocate for your rights and your interests throughout the entire process.
Types of Divorce
Virginia law recognizes two types of divorce: Divorce from Bed and Board and Divorce from the Bonds of Matrimony. Virginia state law does not use the term “legal separation,” but instead calls a limited divorce a “Divorce from Bed and Board.” Such a divorce involves a physical separation, but is a partial, limited, or qualified divorce where neither party is allowed to remarry. A Divorce from the Bonds of Matrimony, however, is a complete and absolute divorce. Any person granted a limited divorce is allowed to pursue a complete divorce one year after they initially separated from their spouse.
Grounds for Limited Divorces
Most complete divorces (a Divorce from the Bonds of Matrimony) begin with a period of limited divorce and physical separation. Those who are abused or abandoned should obtain legal representation immediately to ensure their rights are protected. Any person granted a limited divorce is allowed to pursue an absolute divorce one year after they initially separate from their spouse.
Willful Desertion or Abandonment
Willful desertion or abandonment is grounds for a limited divorce that requires both a physical separation and for one spouse to have the intent to desert. A mutual separation is not considered desertion, but may be grounds for a no-fault divorce. You may file for a limited divorce on the ground of abandonment immediately after the initial act of desertion.
Physical Abuse and Cruelty
Under Virginia state law, you can seek a limited divorce for acts of cruelty that endanger your physical or mental health. While verbal abuse alone may not be grounds for divorce, if living with your spouse renders you unsafe in any way, you should seek immediate legal counsel and file for a limited divorce.
Grounds for Complete and Absolute Divorce
In addition to providing grounds for a limited divorce, state laws also permit one spouse to seek a complete divorce, with or without the other party’s permission
“No Fault” Divorce
The court may grant an absolute divorce if both spouses have been physically separated for a set period of time, indicate that they intend to continue living separately, and have entered into a property settlement or separation agreement. If you have children, you and your spouse may seek a no fault divorce after one year of separation. Otherwise, the waiting period is six months.
Adultery or Sodomy
A divorce on the grounds of adultery or sodomy requires satisfactory and conclusive evidence that proves one spouse engaged in sexual relations with someone outside the marriage. Because of the high standard of proof required, we recommend you review your case with an attorney before filing for a divorce on these grounds.
Conviction of a Felony
A spouse may have grounds for an absolute divorce if their spouse is convicted of a felony and serves a confinement of more than one year, and also if the spouses do not resume cohabitation upon the convicted spouse’s release.
What Can I Expect During the Divorce Process?
Filing for Legal Separation or Divorce
The spouse seeking divorce will file a document called a Final Decree of Divorce (also called a divorce complaint) at the Virginia Circuit Court with the proper jurisdiction (usually the circuit court in the county where either you or your spouse lives). They will also have to pay the necessary filling fees. The complaint will include information about the marriage, grounds for divorce, length of the separation period (if applicable), and any other pertinent information. If you are filing for a divorce, you will need to make sure your spouse is served both the complaint and a summons (usually performed by a process server or a sheriff).
After the papers are filed, the spouse receiving the complaint and the summons has a set number of days to respond to the request for divorce (21 days if both spouses live in Virginia, 60 days if the spouse lives outside Virginia, and 90 days if the spouse lives outside the United States). If the spouse does not respond to the summons, the court will proceed with the divorce.
Court Proceedings
After the necessary waiting period has passed, you will go to court on the date the court has set for you. If neither party is contesting anything about the divorce, you will only need to present the Final Decree of Divorce that was filed and any settlement agreements.
If, however, either party disputes anything about the divorce, including the grounds for divorce, property rights, support, or child custody, you should prepare for a potentially lengthy and in-depth hearing that includes evidence, witnesses, and testimonies.
There are three issues beyond the ground of divorce that are often areas of dispute in a divorce:
Property Distribution
Virginia law requires “equitable” distribution of property that you and your spouse hold at the end of the divorce. This includes all jointly-titled property, as well as any property acquired by either party during the marriage. To distribute the property, the court can order either monetary awards, or the property be divided, sold, or the title transferred to just one party. The court is not required to divide the property on an equal basis, but is allowed to consider a variety factors when equitably dividing property.
Spousal Support
The purpose of spousal support is not to punish one spouse, but rather to lessen the financial impact of a divorce on a party who is financially dependent upon the other. The amount of spousal support is dependent upon a variety of factors, including the age and earning potentials of the parties and the length of the marriage. The amount can either be paid in a lump sum or in periodic payments, and can be subject to revision if the circumstances of either party change.
Child Custody and Support
Child custody is often the most critical and sensitive aspect of a divorce. The courts use the best interest of the child as the defining standard for determining custody. The court may award either “joint legal custody” to both parents (meaning both parents have equal role in making decisions for the child), or “sole legal custody” to one parent (meaning only one parent can make decisions for the child). In cases of sole custody, custody is awarded to the parent who is best able to care for and raise the child, but it can be changed if there is a change in either parent’s circumstances.
Regardless of custody, each parent is expected to contribute to the support of the child. Depending on the custody arrangement, each parent’s income, and other factors, one party may owe the other a child support payment. The state has defined guidelines in determining child support payments, but the court is allowed to deviate from these guidelines if the circumstances require it.
Settlement Agreements and Alternative Dispute Resolution
Instead of taking disputes through the court, some spouses decide to work out the details of the divorce through settlement agreements. Settlement agreements are mutually agreed upon written contracts that detail the rights, duties, and obligations of both parties as a result of the divorce. These agreements are detailed in writing, signed and sworn by both parties, and then properly notarized to make them as binding and legally enforceable as a court decision.
We encourage the alternative dispute resolution process as much as possible to amicably settle disputes and to reduce legal fees. Our attorneys provide this process, and can oversee both mediation and arbitration to reach an amicable agreement for both parties.
What Happens After the Divorce?
After the divorce proceedings come to a close, you may still need assistance with the legal enforcement. If one spouse violates a custody or settlement agreement or refuses to pay child or spousal support, you should seek immediate legal counsel to enforce the divorce agreements.
Why Do I Need an Attorney?
Although you are not legally required to have an attorney during the proceedings, each spouse should obtain separate legal counsel. This is especially necessary in cases that involve child custody or complex property division. Ensuring that you have an attorney advocating for your interests will ensure the best outcome for your future.
