Many questions arise when parties separate and decide to divorce. The following five questions are some of the first questions asked by every person in this situation:
- What issues are resolved in a divorce?
In every divorce the following issues must be addressed and resolved:
- Distribution of Property. All property acquired during the marriage is marital property, regardless of whether the asset is titled in the parties’ joint or individual names. The exception to this is that property acquired by one spouse by gift or inheritance from a third party during the marriage, is that party’s separate property. For purposes of a divorce “property” includes all assets of any nature, including real estate, financial accounts, investments, retirement plans, business interests, and personal property. Once all marital property has been identified and valued, it must be divided between the parties.
- Allocation of Debts. Similar to property, all debts incurred during the marriage, regardless of whether the parties are jointly or individually liable, are generally considered marital debts. Once all marital debts have been identified, responsibility for payment of the debts is assigned to each party.
- Spousal Support (Alimony). If a party is seeking spousal support, the amount of support, terms for payment and duration of the support award must be determined. If neither party is seeking spousal support there must be an express waiver of support by both parties.
- Custody of Minor Children. In cases with minor children, the legal custody, physical custody, visitation schedule, and all other terms for co-parenting children must be resolved.
- Support of Minor Children. Child support is determined by a set formula in Virginia based on both parties’ total gross incomes (taking into account any spousal support), the cost of providing medical insurance coverage for children, the cost of work-related childcare, and the custodial schedule (if the parents have shared custody). The amount of child support and payment schedule will be resolved as part of the divorce.
- Do you have to go to court?
No. The issues in every divorce are either resolved by agreement or in court. If parties reach an agreement the terms are set out in a written Marital Settlement Agreement signed by both parties; this written Agreement is binding and enforceable by the court. If the parties cannot reach agreement, there will be trial in court and the judge will decide the issues. Most cases resolve out of court by agreement. Parties often agree to engage in mediation or the collaborative divorce process, instead of going to court.
- What is the difference between a “fault” divorce and a “no-fault” divorce?
Virginia recognizes five grounds for divorce: (1) adultery, (2) conviction of a felony during the marriage, (3) desertion, (4) cruelty, and (5) living separate and apart for more than one year. The first four grounds for divorce are considered “fault” grounds for divorce. A divorce based on having lived separate and apart for more than one year is considered a “no-fault” divorce. The process and timeline for a “fault” divorce versus a “no-fault” divorce is essentially the same.
The court may consider the reasons for the breakdown of the marriage and any “fault” grounds when dividing marital property and awarding spousal support; however, in most cases “fault” does not have an impact on the financial outcome of the case. Except in very unusual circumstances “fault” does not have any impact on custody and visitation issues.
Most divorces are based on the “no-fault” ground of having lived separate and apart for more than a year.
- How long does it take to finalize a divorce?
In most cases it takes 1-2 years from the date of separation to finalize the divorce. The quickest way to finalize a divorce is for parties to reach an agreement as to all issues arising out of the marriage, and sign a Marital Settlement Agreement prior to the end of the one year separation period. If there are contested issues that must be decided in court, the case will take longer.
In cases where there are no minor children, the divorce can be finalized after a six month separation period, if the parties have also reached an agreement as to all issues arising out of the marriage and signed a Marital Settlement Agreement.
- How much will it cost?
It is very hard to predict how much a divorce will cost; it depends on the complexity of the issues involved, whether the parties are able to reach an agreement, and many other variables. Going to court is always going to be more costly than resolving issues by a settlement.
Every case is different and the answers to these questions may change based on the facts of each individual case. For more information about your specific case, the next step is to schedule a consultation with one of the experienced attorneys at MDMB.