Virginia Family Law Glossary
Clients sometimes find it difficult to speak with their attorney about important family law issues. The definitions below should help resolve this issue.
AdoptionA court action in which an adult assumes all legal and other responsibilities for another person, usually a child. The natural parents lose all parental rights and responsibilites after the adoption.
AffidavitA written statement of facts that are sworn or affirmed to be true. Practically speaking, affidavits are often used to submit facts to the court without having to actually travel to the courthouse to appear in front of a judge.
AlimonySee “Spousal Support.”
Alternative Dispute ResolutionNot every dispute needs to be, nor should be, litigated. Alternative dispute resolution (“ADR”) refers to a set of procedures through which parties can resolve their conflicts, without needing to go through the expensive and time consuming process of taking their case to court. ADR methods include processes like arbitration and mediation. These methods are highly valuable when the parties to the dispute hope to preserve their relationship going forward. Because adversarial litigation is avoided, the ADR process is typically much less contentious (and much cheaper) than the normal contested divorce process.
AnnulmentIn Virginia, spouses can only file for an annulment under specific circumstances. Specifically, marriages that are considered void (such as those involving incest or individuals who never dissolved a prior marriage) don’t require an annulment, since the marriage was illegal from the start. Voidable marriages, on the other hand are caused by defects that are less serious than those in void marriages. For example, marriages that were induced by fraud or duress are generally legally binding but still “voidable” should one of the spouses petition the court for an annulment.
ArbitrationArbitration, like mediation, is a private process that divorcing spouses will sometimes use to resolve certain contested issues. However, arbitration differs from mediation in that arbitrators (the person in charge of the process) can make final decisions about the case. As a common example, Judge Judy and most other daytime reality court shows are actually dressed-up arbitration sessions.
Best Interests of the Child
“Best interests of the child” is the legal standard that Virginia courts use to decide which parent should be awarded primary custody or visitation rights in the event of a divorce or other dispute.
The Virginia Code includes a statute that lists a variety of factors that judges must consider in determining what, exactly, is in the “best interests” of a given child.
These factors include: which parent is the child’s primary caretaker, the intimacy of the relationship between each parent and the child, and the abilities of each parent to give the child love and care, among others.
Bill of Complaint
Your divorce case officially starts when you submit a Bill of Complaint (or, this this case, your “Divorce Complaint”) to your local Circuit Court.
Put simply, this document tells the court (1) that you’re eligible for divorce and meet all relevant requirements, such as the residency requirement, (2) the grounds for your divorce, such as a period of separation from your spouse, and (3) basic facts about you and your spouse, such as the date of your marriage, where you both live now, and other similar information.
“Custody” refers to the idea of “guardianship,” and describes the legal and practical relationship between a parent or guardian and the child(ren) in question.
Custody in Virginia may be either joint or sole.
As defined in the Virginia Code, joint custody means “(i) joint legal custody where both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child even though the child’s primary residence may be with only one parent, (ii) joint physical custody where both parents share physical and custodial care of the child, or (iii) any combination of joint legal and joint physical custody which the court deems to be in the best interests of the child.”
Sole custody, on the other hand, means that “one person retains responsibility for the care and control of a child and has primary authority to make decisions concerning the child.”
Judges take parental rights very seriously in Virginia, and are often hesitant to remove such rights from a parent unless it is determined by the facts of the case to be in the best interests of the child to do so.
Regardless of their marital status, all parents in Virginia have a responsibility to support their children.
Most of the time, this means that the non-custodian parent must pay child support to the parent who is actually housing and taking care of the child.
Virginia uses a long list of child support guidelines to determine the who, what, when, and how much of Virginia child support agreements.
Unlike spousal support, the divorcing parties cannot waive child support, but the parties may agree to elect a child support payment system that deviates from the statutory guidelines.
Additionally, Virginia’s child support laws only provide for a minimum required payment. For this reason, the parties are welcome to contribute more to the support of the child if they so choose.
Contempt of Court
Contempt occurs when one of the parties to a case disobeys or violates a court’s order. Child (and spousal) support decrees may be enforced by contempt proceedings.
It is possible for a party to “purge” himself of contempt and get out of jail by making back payments on missed child support payments.
Divorces in Virginia can be either uncontested (if the spouses agree on every issue of their divorce) or contested (if the spouses disagree on even one issue in their divorce).
For a divorce to be contested, the spouses must be unable to arrive at a satisfactory agreement on one or more key issues in the divorce (such as child custody or property division), and thus must appear in court to resolve the matter.
Contested divorces tend to take longer and cost more than uncontested divorces, and are generally reserved for issues involving matters of importance that the spouses simply cannot resolve amongst themselves.
The custodial parent is the parent who, upon divorce, has been awarded primary physical custody of a child. This is the parent with whom the child primarily resides.
In the context of child support payments, the custodial parent is the payee, or the recipient, of the support payments.
Date of Separation
During a Virginia no-fault divorce, the couple must live “separate and apart” from one another for a period of one year (or six months if they have a property settlement agreement and no children are in the picture).
The date that the couple formally splits (i.e. the date on which this period of separation begins) is known as the “date of separation.”
This could be the date that one spouse tells the other “I want to file for divorce” and moves out of the family home, the date the spouses have a fight that ultimately ends the marriage, or any other similar, provable date that marks the beginning of the end of the marriage.
Divorce from Bed and Board
Virginia law recognizes two types of divorces.
A divorce from bed and board (also known as a divorce a mensa et thoro is a partial or “qualified” divorce.
Basically, the husband and wife are practically separated, but are still legally married as far as Virginia is concerned.
This form of divorce is often used when a couple cannot file for a normal fault-based divorce due to financial or religious reasons.
Divorce from the Bond of Matrimony (“Absolute Divorce”)
The most common type of divorce in Virginia is the divorce from the bond of matrimony (or, divorce a vincula matrimonii.
It is an absolute and complete divorce that legally dissolves the marriage.
Whenever someone mentions divorce in Virginia, this is usually the type of divorce they’re referring to.
Couples that file for divorce in Virginia must divide all marital (shared) property and assets in an “equitable” (“fair”) manner.
Note that this is not an equal division, but, rather, a division that is fair to both parties, a decision that is informed by both Virginia law and decisions from previous, similar cases.
Specifically, the Virginia Code sets out a list of 11 factors that the court must consider when deciding to whom to give the property.
In order to equitably distribute property, the judge must classify it as either marital, separate, or hybrid property. This is based on when the property is acquired.
The judge must then examine the value of the property. If the value of the property is in question, the parties may hire experts such as a CPA, a realtor, a mechanic, etc. to help determine the current market value as of the time of the evidentiary hearing.
Finally, the judge must distribute the property “equitably” between the spouses.
Note, however, that a couple may avoid the hassle and often-complicated process of an equitable distribution by creating a property settlement agreement (PSA) that disposes of all their assets and debts on their own terms, without needing the court to step in and help.
The Virginia Code allows for four specific faults that Virginia residents may claim as the grounds for their divorce:
- Cruelty / Neglect
- Felony Conviction
As the name suggests, fault-based divorces are based on some marital wrongdoing or an instance of misconduct on the behalf of a spouse.
Generally speaking, the “point” of a fault-based divorce is to argue for a specific outcome in your divorce case that you would not otherwise be able to claim if you filed for a no-fault divorce.
For example, you may be able to claim that your spouse does not deserve spousal support (“alimony”) payments if you successfully file for divorce on grounds of adultery.
Fault-based divorces are almost always contested in nature, and it is highly recommended that you hire an attorney if you want to file for this type of divorce.
Grounds for Divorce
The grounds for your divorce will be the legal basis for your divorce complaint. The Virginia Code notes five specific grounds for divorce:
- A period of separation from your spouse of 12 months (or, if you have no children and have completed a separation agreement, 6 months).
- Cruelty / Neglect
- Felony Conviction
Most Virginia divorces are filed on grounds of separation and are known as “no-fault” divorces.
Divorces that are filed on any of the other four grounds are known as “fault-based divorces.”
Guardian ad Litem (GAL)
In cases involving the rights of children, the court may decide, on its own or by a request, to appoint a guardian ad litem (GAL) to the case.
A GAL is a lawyer whose job is to represent and advocate for the interests of the child.
The GAL is not on either parent’s side but is instead an unbiased voice for the child. They are particularly useful in cases where the parents disagree on certain issues involving the child, such as custody or visitation.
The GAL will often make house visits and interview the child in order to get the best picture of the situation, after which they’ll make a recommendation to the judge for what they think the best course of action is in the case.
See “Child Custody.”
Jurisdiction is the authority given by state or federal law to a legal body (i.e. the court) so that it can hear a case. “Venue,” on the other hand, is the actual physical location where the case is heard.
Put another way, a court can have jurisdiction over a case when the relevant laws dictate that the court has the power to resolve the case, while the court that actually exercises that power is the “venue.”
In the family law context, before a court may enter a divorce, annul a marriage, award custody, or do anything else modifying a family’s arrangement, the court must have jurisdiction over the parties.
For there to be jurisdiction over a divorce proceeding, at least one of the spouses must be domiciled in the state asserting jurisdiction (in this case, one spouse must have lived in Virginia for at least six consecutive months leading up to the date they file for divorce).
If two (or more) courts have jurisdiction over the case, the one that actually hears the case is the venue. The parties involved (the “litigants”) may waive or give consent to venue at their convenience (put another way, you can pick the one that works best for both of you).
Some states allow spouses to legally separate in preparation for a divorce. Virginia, however, does not recognize legal separation.
Alternatives to legal separation that work in Virginia include a well-written property settlement agreement and a divorce from bed and board.
Couples that file for divorce in Virginia must classify their property as either marital, separate, or part marital and part separate (“mixed”) property.
This is because, in Virginia, marital property is subject to division, while separate property is generally not subject to division.
Generally, marital property is defined as all property acquired subsequent to or during the marriage.
For example, marital property generally includes:
- The family home
- The family car
- Any property bought using shared funds, such as furniture or kitchen appliances
- Jointly owned retirement accounts (this does not include pension accounts where one spouse lists the other as the beneficiary)
- Money stored in a jointly owned checking or savings account
- Anything else that a reasonable person would think of as “shared” in the marriage
Property acquired before the marriage, on the other hand, is generally considered to be separate.
However, as with most family law issues these definitions are not set in stone, and can often fluctuate based on the facts of the case.
Divorce mediation is the process of working out the terms of your contested divorce with your spouse under the guidance of an experienced mediator rather than a judge.
The goal of most instances of mediation is to complete a property settlement agreement (PSA) that resolves all aspects of the divorce.
During mediation, both parties will meet with a neutral third party (the “mediator”) who will help them reach an agreement about the terms of their separation.
Mediators help the parties work through their issues by drafting creative solutions that address concerns such as child custody, property division, and spousal support.
In the contexts of a Virginia divorce, mixed property is any property that is part marital property and part separate property.
The application of the law to this category of property is very complex, and only an attorney who has reviewed the full facts of your situation can properly classify your property as mixed.
However, in general, mixed proper includes property and assets such as:
- Income received from otherwise separate property during the course of the marriage that is attributable to the personal efforts of either spouse (such as if you collect rent from an inherited home).
- Any increase in value of otherwise separate property to the extent that marital property or personal effort contributed to the increase in value (such as if one spouse fixes up an inherited one, thus increasing its overall value).
- The share of the value of a house or other form of property that was initially purchased using separate property, but mortgaged under the names of both spouses and paid off in full during the marriage with marital funds.
Again, however, mixed property is an incredibly complex area of law, so you’ll want to discuss your options with an attorney before you begin to classify certain property as mixed.
Virginia, like the vast majority of the states, now recognizes what’s called a no-fault divorce.
Unlike a traditional fault-based divorce, a no-fault divorce does not need to be based on one of the statutorily enumerated fault grounds—such as adultery, abandonment, or cruelty.
Instead, the grounds for the divorce will be a continuous period of separation in which the spouses must live separate and apart for one year.
Or, if they have a property settlement agreement (PSA) in place and there are no minor children in the picture, a period of separation of more than six months.
You can generally file a no-fault divorce without a trial or court hearings.
After you’ve proven the required elements—usually by affidavit—the court will issue a final decree of divorce.
Pendente Lite Order
A pendente lite order is a temporary court order that governs an issue while the parties are still litigating the matter.
For example, in an ongoing child custody case a parent could request a pendente lite custody order that temporarily decides certain issues such as where the child spends school nights.
Pendente lite relief refers to temporary spousal support (“alimony”) payments that can help one spouse maintain a certain level of comfort while the main divorce case is ongoing.
Person with a Legitimate Interest
As defined by the Virginia Code, a person with a legitimate interest “includes, but is not limited to, grandparents, step-grandparents, stepparents, former stepparents, blood relatives and family members provided any such party has intervened in the suit or is otherwise properly before the court. The term shall be broadly construed to accommodate the best interest of the child.”
Basically, anyone who has an interest in the well-being of a child, but is not that child’s parent, counts as a person with a legitimate interest (provided a judge agrees that they fit this definition).
Prenuptial Agreement (“Prenup”)
A prenuptial agreement—also known as a premarital agreement—is a contract that spouses create and enter into prior to their marriage.
The subject matter of the contract is how the couple’s various assets and property should be divided in the event of a divorce.
It lays out the spouses’ rights and obligations to each other in the future and can even categorize certain property or assets as “separate” or “marital” in preparation for a potential future equitable distribution.
If you and your spouse entered into a prenup before your marriage, you must show this document to your attorney as soon as possible if you are considering divorce.
Pro Se Divorce
Individuals who choose to file for divorce without the assistance of an attorney will instead file pro se, a latin term that means “for oneself” or “on behalf of yourself.”
Filing for divorce pro se is generally not recommended, as Virginia’s divorce procedures are rather complex.
Property Settlement Agreement (PSA)
A property settlement agreement, or PSA, is a legal agreement in which a divorcing couple discusses and resolves various important issues created by their separation.
These include the topics of child and spousal support, visitation rights, and separation of property and debts.
Using a PSA is beneficial in that it gives the couple more autonomy and control over important issues while also decreasing the amount of time that the spouses must live separate and apart before petitioning for a no-fault divorce.
Separate property includes property belonging to either spouse that is not subject to a court’s power of equitable distribution upon a divorce.
Marital property, in contrast, is subject to equitable distribution.
Separate property is generally defined to include things such as:
- Property acquired by gift, bequest, devise, or descent
- Property acquired in exchange for separate property
- The increase in value (appreciation) of separate property
- Property excluded by a valid agreement between the parties (such as a prenup)
- Property acquired by a spouse after a decree of legal separation, or after the date of separation
As with most family law issues, however, the definition of separate property can change from case to case, so you’ll want to speak with an attorney if you have any questions about whether certain property is separate in your particular situation.
Service of Process
For a divorce to be valid in Virginia, one spouse must properly “serve” the other with divorce papers.
Put simply, courts in the United States cannot hear cases unless the defendent has proper notice of the court’s proceedings.
To meet this requirement, courts require that plaintiffs “serve” the defendents with court orders as a way of confirming that the defendent has proper notice of the proceedings against them.
During a Virginia divorce, most spouses can ask the local sheriff’s office to serve their spouse for a small fee (usually $12.00), thus meeting this requirement.
See “Child Custody.”
Also known as alimony, spousal support is the amount of money that one spouse is ordered to (or agrees to) pay the other upon divorce.
Unlike child support, spousal support is not mandatory, and can be waived if not addressed or requested in the property settlement agreement or divorce petition.
Generally, support obligations continue for a specified period of time, until the receiving spouse remarries, or until some other event significantly alters the circumstances enough for the support to no longer be warranted.
In Virginia, a statute sets out several factors that a court may consider in determining whether and how much spousal support to award.
Note that a spouse’s fault in contributing to the divorce is a factor that the court may consider.
If one spouse has committed adultery, for example, that spouse is not entitled to any support, unless such a denial would result in a “manifest injustice.”
Uncontested divorces occur when neither party wants to fight the contents or circumstances of a divorce decree.
Generally speaking, uncontested no-fault divorces that include a property settlement agreement (PSA) are the recommended and most common type of divorce in Virginia.
Generally speaking, when two parents split and must decide on the custody of a child, one of the parents will assume primary physical custody (i.e. the child will primarily live with that parent, making them the “custodial parent”).
However, this custody is subject to the right of visitation of the other parent.
Put another way, “visitation” is the right of the non-custodial parent to see and spend time with his or her child or children.
For this reason, separation agreements and property settlement agreements (PSAs) will contain a schedule of visitation that the parents have worked out between themselves that is designed to preserve the child’s relationship with both of his or her parents.
A void marriage is a marriage that is considered unlawful from the very beginning.
In such a scenario, you might not need to take any legal action to annul your marriage, since the court may immediately recognize your marriage as invalid.
The Virginia Code lists several marriages as “prohibited” and thus void:
- A marriage entered into when at least one spouse is still married to another party.
- A marriage between direct relatives (ancestor/descendant, brother/sister, etc…) including those whose relationship is by half or whole blood and those are are adopted.
- A marriage between an uncle and a niece or between an aunt and a nephew, whether the relationship is by half or whole blood.
- All voidable marriages that are rendered void by a decree of divorce or nullity.
Put simply, the primary difference between a void and a voidable marriage is that void marriages are invalid from the beginning (i.e. the marriage never legally occured), while voidable marriages can be made void upon the intervention of a judge.
Voidable marriages are marriages that can be made void upon the intervention of a judge.
Common examples of voidable marriages include:
- Marriages that are solemnized when either party lacks the capacity to consent (such as due to mental incapacity or infirmity).
- Marriages solemnized in the Commonwealth of Virginia on or after July 1st, 2016 in which either party was, at the time of the marriage, under the age of 18 and not legally emancipated.
- Marriages that were induced by fraud or duress.
- Marriages that were not performed under a marriage license and that were never solemnized.
- Marriages that include fact patterns similar to those outlined in Virginia’s annulment statute, such as if one spouse had been convicted of a felony without the knowledge of the other.
Spouses who meet one of these definitions may qualify for an annulment of their marriage.