Domestic Relations Laws -

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DOMESTIC RELATIONS LAWS

DIVORCE PROCEEDINGS
DIVORCE FROM BED AND BOARD VS. ABSOLUTE DIVORCE
PROPERTY SETTLEMENT AGREEMENT (PSA)
EQUITABLE DISTRIBUTION
SPOUSAL SUPPORT AND MAINTENANCE
PHYSICAL AND LEGAL CUSTODY OF A CHILD

Divorce Proceedings

Although the concept is diluted nowadays, the traditional family is regarded as the basic building block of society. Certainly, family has been and is the unit that ensures the continuation of communities, people, and society. In this equation, marriage or the institution of marriage has been regarded as the foundation for a strong family. Society has maintained a strong interest in the institution of marriage, because it is believed to play an important role in building a healthy and functioning community. Thus the state regulates not only how the institution of marriage is established but also how it should be dissolved.

Divorce is essentially a legal proceeding. In Virginia the Domestic Relations Statutes provide two sets of propositions as grounds for divorce, which, simply put, can be summarized as ‘fault based’ grounds and as ‘no fault’ grounds of divorce.

Acts of adultery, buggery and sodomy are those the law regards as fault based grounds for divorce and on the other hand, desertion, abandonment, cruelty, and imprisonment are regarded as ‘no fault’ grounds for divorce. Though the statutory construction is quite detailed and contains additional elements, it could be summarized as such for simplicity of expression.

In a divorce proceeding, marriage is considered as the 'object' (res) of the dispute and hence Virginia Courts would take or shall have subject matter jurisdiction even though the other party (defendant) is not a resident of Virginia or lacks any contact with Virginia. So far as the plaintiff can show his or her continuous residence in the jurisdiction for at least six months next preceding the commencement of the divorce action, the Court shall have jurisdiction to entertain the subject matter.

Divorce necessitates settlement of certain affairs that came about as a result of the marital union. This could be either one of custody of children, distribution of property, spousal or child support, or all of the foregoing. However, unlike in a divorce action, in a suit seeking an award of custody of a child, support, or property distribution, the plaintiff has to show that the Virginia Court do have in personam jurisdiction over the parties. The Virginia Statutes provide the basis how such jurisdiction can vest upon a Virginia Court.

A divorce proceeding could be either brief, in relative terms, or lengthy depending on the individual circumstances of the case. When the parties are not at issue on any subject matter, the legal process could be wound-up fairly quickly and with less cost to both sides. Such kinds of divorce proceedings are usually referred as 'uncontested divorce' proceedings. This occurs on two instances:

First, where the parties have no child born or adopted of the marriage, there is none or no significant property to be distributed amongst them, and when there is no issue of claim of support by any one spouse against the other.
The second instance is where parties sit down and resolve all issues and claims involved with regard to custody, property division, visitation, support, and other matters outside of litigation and then draw up and sign an agreement frequently referred as a 'settlement agreement' or 'marital agreement' with the view to be bound by its terms upon divorce.

A final divorce decree could be obtained within one month from the filing of a complaint or could last years while parties go through a litany of motions and appeals.

A divorce process, whether simple or complex, surely requires the assistance of an expert who is conversant in the languages of the judicial forums involved and versed in the laws applicable. It has to be said with no lesser emphasis, though, that such person should also be one who can appreciate the emotional turmoil the Client has gone and is going through in the course of the divorce process. An attorney, thus, has to be committed to help the client under such circumstances without violating the ethical and statutory rules.

In the course of a divorce proceedings before a Virginia Court, you may come across to the following terms and concepts you might want to know about.

Divorce from Bed and Board vs. Absolute Divorce

The Virginia Statute provides two kinds of divorces. The first is a divorce from bed and board or otherwise referred as divorce et thoro and the second is divorce from the bond of matrimony or referred as divorce a vincullo matrimonii. The effect of the first kind of divorce is separation and severance of cohabitation and distinct property right over those earned or acquired form the date of separation, however, where the parties are not yet free to remarry. An absolute divorce on the other hand is where the marital relationship and bond of matrimony with its antecedents is completely dissolved and the parties are free to remarry from the date a final decree is entered.

Property Settlement Agreement (PSA)

In general terms a settlement agreement is a legal document that stipulates the terms with which the parties have agreed to be abided by. A divorce settlement agreement or otherwise called ‘separation agreement’ is a kind of such agreement whose object is settling the different issues pertinent to the termination of marital relationship of the parties. In the context of divorce such settlement agreements may provide terms how their marital property is divided between them, who takes custody of children and the details of visitation rights, amount and method of payment of child support and spousal support, tax responsibilities, health insurance responsibilities, etc. A divorce settlement agreement can be brief or can be made detailed depending on the issues that are going to be addressed.

Equitable Distribution

Equitable distribution is a legal concept pertinent to distribution of marital property upon dissolution of marriage. It is all about the process of identifying, valuing, and equitably dividing marital property or ordering compensatory payment from one spouse to another to render equitable distribution of the marital property. Virginia is a “community of property” state where all properties acquired by the married couple during the life of their marriage, no matter in whose name the property is titled, are presumed to be joint property where both spouses have undivided equal interest on these properties. Unless one of the spouses could show or rebut the presumption of joint tenancy as provided in the statutes that a certain piece of property is personal and distinct from the marital property, division of marital property at the time of divorce is fifty-fifty. However, the Courts consider a number of factors to determine who gets what property.

Spousal Support and Maintenance

The origin of the concept of “spousal support and maintenance” (in common law terms referred as ‘alimony’) was found in the idea of the duty of a husband to support and maintain his wife during their marriage. This idea of marital support became extended by the common law courts to be available for the wife as an equitable remedy even after divorce only to be limited by the death of one of the two parties. During the earlier periods the power of the Courts to grant such a relief was rooted in equity and deemed absolute. In recent times, with the enactment of divorce statutes, the right to support become statutory and also took into account the new economic reality that the duty of support is not merely one of the husband to the wife but a mutual duty of either spouse to support the other. At present the basis for the right to seek spousal support and maintenance is statutory and the courts now have no absolute power to enter a decree of spousal support except pursuant to statutory authority and provisions.

Physical and Legal Custody of a Child

Custody of a child consists of two parts, viz., legal custody and physical custody. Legal custody is to refer to the authority to make long-term parenting decisions such as education, medical, discipline, etc. Physical custody or otherwise referred as ‘residential custody’ on the other hand, is to refer to where the child lives most of the time. All parents have, separated or not, joint custody of their minor children, until or unless the court orders otherwise.

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