Divorce: Pandemic-Style and Your Options from NOVA to Tidewater

By: Jim Beglis

[05.28.2021]

Divorce is never easy, even when it’s necessary. But when unemployment and pandemic burnout is high, and housing options are historically low, people seeking a life change can face an even more uncertain future. Experts in the field can answer the questions you have about your options in Virginia and help you be in the best position possible to close one chapter and start a new one.

Do I have to be legally separated to get a divorce in Virginia?

No. In fact, Virginia does not recognize the concept of a legal separation. Typically, in Virginia, a divorcing couple must “live separate and apart” and maintain the intent to remain separate for one year in order to divorce. If there are no children of the marriage, and if the parties are able to sign an agreement resolving how they will separate their property and whether support will be paid, that period can be shortened to six months of separation before they are eligible.

This separation isn’t what most people think of when they think of a legal separation—there are no court filings necessary, and no formal paperwork is required. But, in most jurisdictions, separation in Virginia also doesn’t have to mean that one party has to move out of the marital residence in order to start the clock running.

Many people can’t move out of a marital home during a divorce for various reasons, so separation is judged by how the parties live. In order to show they are separated, they must act like it—meaning they don’t share a bed, they don’t cook dinner together, and they don’t care if the other finishes that documentary series alone. Of course, it’s pretty easy to prove separation when someone moves out, but as long as the parties intend to stay separated and show this through their actions, it isn’t required.

What am I entitled to in my divorce?

In terms of property division, Virginia is an equitable distribution state. This means that the marital property will be divided between the spouses based on what a judge determines to be fair after applying the facts of the case to a variety of factors that the judge must consider. This is not an automatic 50/50 split like it is in other states; rather, the court will look at what each spouse contributed to the marriage and split the marital property fairly. The court will consider the parties’ financial contribution to the marriage as well as other non-monetary contributions such as being a homemaker or raising children.

When the court divides the marital estate, they are primarily concerned with the marital property. Marital property is what a couple acquires during their marriage, and this is what will be split fairly between the couple. In most cases, your separate property stays with you. Separate property is what you acquire before you got married, during your marriage through inheritance and gifts, and after you separated, even before your divorce. This makes the date of separation very important because it’s the date on which the parties stop acquiring marital property and are financially separate again.

Finally, some property is part marital and part separate. For instance, if you bought a home before you got married and made the down payment with pre-marital funds but paid the mortgage for years while you were married, that would make the marital home hybrid property. The down payment portion and any mortgage principal paid before you were married would be separate property, but the portion paid during the marriage would be marital and subject to division. This is the case no matter which spouse actually pays the mortgage from income—because all marital income is marital property.

Who will get the house in a divorce?

There’s no hard and fast rule on who gets the marital home in a Virginia divorce. First, a house must be marital property to be subject to division—if one party owned it outright before the marriage, it is separate property and will remain owned by that person barring any other factors. But if a home is marital property, it’s subject to fair division just as any other marital property, like a retirement or savings account, would be.

The court has several options on assigning the home—and whatever happens ultimately depends on the individual facts of a case. Of course, the parties can always agree on who should retain any particular piece of property. They can also agree to sell the home and split the proceeds.

If one wants to keep the home and there is marital equity in it, the other spouse can take a bigger share of the other property in the estate or get paid their equity out over time. When both spouses want to keep the home, the court will look at multiple factors to determine what’s fair. These may include whether one spouse will have full custody of the children, whether one spouse is in a better position to make the mortgage payment alone, and the contributions of each spouse to home improvements. The court will have multiple options to consider, including the arguments of counsel.

How long will my divorce take?

This is entirely case-specific and will depend on how your divorce progresses. Of course, most people will have to wait for the one-year or six-month period of separation to pass before their divorce can be finalized. In the meantime, the parties must either agree on all the other issues in the divorce or litigate them. The parties will need to hash out how to divide their marital property, whether either spouse will pay spousal support, how much, and for how long, and on the custody and support of any children.

It is entirely possible in an amicable divorce that the parties have all of these issues worked out before they even file—so the divorce can be granted as soon as the period of separation is over. But any one of these issues can become a sticking point that can extend the process significantly. If it takes three months to agree on how to split the savings account, that’s three additional months the case will go on. And if anything must be litigated, that’s an even longer delay. It isn’t unheard of for a contested divorce to last two years or more, depending on the issues involved.

How much will my divorce cost? 

Much like with the time frame, there’s no good way to predict the cost of a divorce. However, the more the parties can agree on, and the sooner all the issues can be resolved, the less cost to the couple. That being said, cost is always relative. You may pay an attorney who can get a better settlement for you, saving you money in the end. On the other hand, you may also want to move on personally more than you want to fight over the dining room table or the value of your 2014 SUV.

Whatever you want most out of your divorce, an experienced lawyer can help you get it. So you can leave the past behind and chart a brighter future.

To learn how our team can help you, contact WhitbeckBennett by calling 800-516-3964 or emailing clientservices@wblaws.com.

To learn more about divorce, visit our Divorce Law page.

Related: Divorce Law