A Seasoned Attorney’s Guide to Divorce in Hampton Roads, Virginia

Pillar 1: Understanding the Grounds for Divorce in Virginia

Before a Virginia court can grant a divorce, legal grounds must be established. This can be accomplished through a “no-fault” separation period of either six or twelve months, or by proving “fault” grounds such as adultery, cruelty, or desertion. The choice of grounds is a strategic decision that can significantly influence spousal support and the overall timeline of the divorce proceedings.

In my experience, one of the first points of confusion for clients is the concept of “grounds.” You cannot simply decide you want a divorce and have a court grant it the next day. Virginia law, specifically the Code of Virginia § 20-91, lays out the specific reasons a court can dissolve a marriage. These fall into two broad categories: no-fault and fault-based.

No-Fault Divorce: The Path of Separation

This is the most common path to divorce in Hampton Roads and across Virginia. It does not require one spouse to prove the other did something wrong. Instead, it is based on a period of continuous separation. The requirements are clear:

• One-Year Separation: If you and your spouse have minor children, or if you do not have a signed Property Settlement Agreement (also known as a Marital Settlement Agreement), you must live separate and apart, without cohabitation and without interruption, for a period of at least one year before the court can grant the divorce.
• Six-Month Separation: The separation period is reduced to six months if, and only if, you have no minor children together and you have a signed, written Property Settlement Agreement that resolves all matters of property and debt.

What does “separate and apart” mean? It means more than just sleeping in different bedrooms. It requires that at least one party has the intent to end the marriage and that this intent has been communicated to the other spouse. While it is possible to be “separated” while living under the same roof for financial reasons, this is a legally perilous path that requires strict adherence to separate lives. It creates evidentiary hurdles and is a strategy that should only be pursued with careful legal guidance.

Fault-Based Divorce: When Misconduct is a Factor

While less common as the primary means to a divorce decree today, fault grounds remain critically important, especially concerning spousal support and, in some cases, property division. The primary fault grounds under § 20-91 are:

• Adultery, Sodomy, or Buggery: Proving adultery requires a high standard of evidence—clear and convincing proof—which is more than just suspicion. It often involves corroborating evidence from a third party. A finding of adultery can act as a bar to receiving spousal support for the guilty party, unless the court finds that denying support would constitute a “manifest injustice.”
• Felony Conviction: If a spouse is convicted of a felony, sentenced to more than a year of confinement, and the spouses do not resume cohabitation after the release, this can be grounds for divorce.
• Cruelty and Reasonable Apprehension of Bodily Harm: This involves acts of physical violence or conduct that creates a reasonable fear of it. A single act of violence can be sufficient. Emotional cruelty can also be grounds, but it must be severe and persistent.
• Willful Desertion or Abandonment: This occurs when one spouse breaks off matrimonial cohabitation with the intent to desert the other. The separation must be against the will of the deserted spouse and must continue for at least one year.

As a seasoned divorce attorney in Hampton Roads, I advise clients that pursuing a fault-based divorce is a serious strategic decision. It often leads to more contentious, expensive, and lengthy litigation. However, when the facts support it, it can be a necessary tool to protect a client’s financial interests, particularly regarding alimony.

Pillar 2: The Equitable Distribution Maze: Dividing Marital Assets & Debts

Virginia is an “equitable distribution” state, meaning the Circuit Court will divide marital property fairly, but not necessarily in a 50/50 split. Pursuant to Code of Virginia § 20-107.3, the court meticulously classifies property as marital, separate, or hybrid and then weighs numerous factors to arrive at an equitable award for each spouse. This process is complex and a focal point of most divorce litigation.

For many people, the most daunting aspect of divorce is the financial division. “Who gets the house?” “What happens to my retirement?” “Am I responsible for my spouse’s credit card debt?” These are the questions that keep clients awake at night. The legal framework for answering them in Virginia is called Equitable Distribution. It is a three-step process handled by the Circuit Courts in places like Norfolk, Chesapeake, and Suffolk.

Step 1: Classification of Property

The first job of the court, and of your Hampton Roads family lawyer, is to classify all property owned by the parties. There are three categories:

1. Separate Property: This includes all property acquired by either spouse before the marriage. It also includes property acquired during the marriage by inheritance or as a gift from a source other than the other spouse.
2. Marital Property: This is the crucial category. It encompasses all property acquired by either spouse from the date of the marriage to the date of the final separation. This includes income earned, houses purchased, retirement benefits accrued, and investments made during the marriage, regardless of whose name is on the title.
3. Hybrid Property: This is part marital and part separate. A common example is a home owned by one spouse before the marriage (separate property) but whose mortgage was paid down with marital funds during the marriage (creating a marital interest). Another is a retirement account that had a balance before the marriage but grew significantly during it. Tracing the separate and marital contributions to hybrid property is one of the most complex tasks in a divorce.

Step 2: Valuation of Property

Once classified, all marital and hybrid property must be valued. This can be simple for a bank account but becomes complex for assets like a family business, a pension, or unique collectibles. This step often requires the use of professional appraisers, forensic accountants, or other financial neutrals to provide an accurate, defensible valuation for the court.

Step 3: Distribution Based on Statutory Factors

This is where the “equitable” part comes in. The judge does not simply add everything up and divide by two. Instead, they are required by § 20-107.3 to consider a list of specific factors. After more than 20 years in practice, I can attest that how these factors are presented to the court is everything. Key factors include:

• The monetary and non-monetary contributions of each party to the well-being of the family.
• The monetary and non-monetary contributions of each party to the acquisition and care of the marital property.
• The duration of the marriage.
• The age and physical and mental condition of the parties.
• The circumstances and factors which contributed to the dissolution of the marriage (this is where fault, like adultery, can have an impact).
• How and when specific items of marital property were acquired.
• The debts and liabilities of each spouse.
• The tax consequences to each party.

A skilled divorce attorney in Hampton Roads builds a case around these factors, weaving a narrative supported by evidence that persuades the court to make a distribution that is truly fair for their client.

Pillar 3: Child Custody and Support in Hampton Roads

In any divorce involving minor children, the court’s sole and paramount concern is the “best interests of the child.” As mandated by Virginia Code § 20-124.3, judges in the Hampton Roads Juvenile and Domestic Relations (J&DR) and Circuit Courts will evaluate at least ten specific factors to determine legal custody (decision-making) and physical custody (where the child lives).

Of all the issues in a divorce, none is more emotionally profound than child custody. As an attorney, this is where my role shifts from legal strategist to counselor and fierce advocate for a stable future for the children. In Hampton Roads, initial custody and support matters are often first heard in the Juvenile and Domestic Relations District Courts (J&DR), with appeals and final divorce orders handled by the Circuit Courts.

Legal vs. Physical Custody

It’s vital to understand the two types of custody in Virginia:

• Legal Custody: This refers to the right and responsibility to make important decisions for your child regarding health, education, and general welfare. There is a strong presumption in Virginia law that joint legal custody is in the child’s best interest.
• Physical Custody: This refers to where the child will primarily reside. One parent may be the “primary physical custodian,” with the other parent having visitation rights, or the parents may have a “shared custody” arrangement where the child spends significant time in both homes.

The “Best Interests of the Child” Factors

A judge cannot make a custody decision based on a whim or a personal preference for one parent. They are legally bound by § 20-124.3 to consider a list of factors. A compelling custody case is built by presenting evidence on each of these points. They include:

1. The age and physical and mental condition of the child.
2. The age and physical and mental condition of each parent.
3. The relationship existing between each parent and each child.
4. The needs of the child, including other important relationships like siblings.
5. The role that each parent has played and will play in the upbringing of the child.
6. Each parent’s propensity to actively support the child’s relationship with the other parent.
7. The relative willingness of each parent to maintain a close relationship with the child.
8. Any history of family abuse or sexual abuse.
9. The child’s reasonable preference, if the court deems the child to be of reasonable intelligence, understanding, age, and experience.
10. Any other factors the court deems necessary and proper.

Child Support Calculations

Child support in Virginia is determined by a formula set forth in Code of Virginia § 20-108.2. This formula, often called the “guidelines,” is based on the combined gross monthly income of both parents, the cost of work-related childcare, and the cost of health insurance for the children. The resulting number is considered a “presumptive” amount. While the calculation itself seems mathematical, a knowledgeable attorney can argue for deviations from the guideline amount when specific circumstances warrant it.

Pillar 4: Spousal Support (Alimony): A Key Consideration

Spousal support, or alimony, is not automatic in a Virginia divorce. It is awarded based on a detailed analysis of the factors in Code of Virginia § 20-107.1. The court considers the needs of the requesting spouse versus the other spouse’s ability to pay, the standard of living during the marriage, and the reasons for the marriage’s breakdown. Fault, especially adultery, can be a complete bar to receiving support.

Spousal support is one of the most contentious and misunderstood aspects of divorce law. Unlike child support, there is no simple formula. The decision to award support, as well as the amount and duration, is left to the discretion of the Circuit Court judge, guided by the 13 factors listed in § 20-107.1. My role as a divorce attorney in Hampton Roads is to build a case that clearly demonstrates why my client should or should not pay or receive support, based on these statutory factors.

The court will consider everything, including:

• The obligations, needs, and financial resources of the parties, including income from all sources.
• The standard of living established during the marriage.
• The duration of the marriage.
• The age and physical and mental condition of the parties.
• The contributions, monetary and non-monetary, of each party to the well-being of the family.
• The property interests of the parties.
• The provisions made with regard to marital property under § 20-107.3.
• The earning capacity, including the skills, education, and training of the parties.
• The decisions regarding employment, career, and parenting made during the marriage that affected earning potential.
• The circumstances that contributed to the dissolution of the marriage (the “fault” factor).

Support can be awarded for a defined period (rehabilitative), to allow a spouse to get the education or training needed to re-enter the workforce, or for an undefined period in cases of a long-term marriage or when a spouse is disabled. It is a complex and fact-specific analysis where experienced legal representation is invaluable.

The SRIS Virginia Divorce Readiness Blueprint

After decades of practice, I’ve observed that the clients who navigate their divorce most successfully are those who are best prepared. Uncertainty breeds anxiety and poor decision-making. To empower our clients, we developed this internal blueprint to organize the process from the very beginning. This is not legal advice, but a framework to help you gather the information necessary for a productive consultation with a Hampton Roads family lawyer.

Phase 1: Information Gathering & Triage

Your first step is to create a comprehensive inventory of your life. Knowledge is power.

1. Create a Personal Timeline: Write down key dates: date of marriage, date of birth of children, date of separation (or when you believe you separated).
2. Inventory Financial Documents (Last 3 Years): Gather and make copies of:
   • Tax returns (personal and business)
   • Pay stubs or LES for military members
   • Bank account statements
   • Credit card statements
   • Mortgage statements
   • Car loan statements
   • Retirement account statements (401k, TSP, Pension, IRA)
   • Investment account statements
3. List Major Assets: Create a simple spreadsheet. List the asset (e.g., Family Home, 2022 Toyota Highlander, Navy Federal Account), who holds the title, the approximate value, and the outstanding debt.
4. List All Debts: Create a second list for all liabilities (credit cards, personal loans, student loans), noting who the debtor is and the current balance.
5. Draft a Monthly Budget: What does it currently cost to run your household? What do you anticipate it will cost to run your own household after separation? Be realistic.

Phase 2: Defining Your Core Objectives

You cannot reach a destination if you don’t know where you are going. Think critically about your priorities.

1. Children’s Best Interests: Write down what you genuinely believe is the ideal custody and visitation schedule for your children’s stability and well-being. Think about school, activities, and time with each parent.
2. Primary Financial Goals: What is your most important financial outcome? Is it keeping the marital home? Is it securing a portion of your spouse’s retirement? Is it avoiding long-term spousal support obligations? Rank your top three financial priorities.
3. Identify Potential Conflicts: Where do you anticipate the most disagreement? Is it custody? Spousal support? The value of a family business? Knowing this helps your attorney prepare a strategy.

Phase 3: Assembling Your Team

Divorce is not a solo endeavor. You need professional support.

1. Consult a Seasoned Divorce Attorney: Use the information you’ve gathered in Phase 1 and 2 to have a meaningful, detailed case assessment. This is the most important step.
2. Consider a Financial Advisor: A financial planner can help you understand the long-term impact of various settlement proposals.
3. Seek Personal Support: A therapist or counselor can provide invaluable emotional support and coping strategies for you and your children during this stressful time.

Strategic Approaches to Your Hampton Roads Divorce

The ideal strategy for a divorce depends entirely on the unique facts of the case, the personalities involved, and the client’s ultimate goals. Approaches can range from collaborative negotiation and mediation, aimed at an amicable settlement, to assertive litigation when essential rights and assets are at stake. A seasoned attorney will help you choose and execute the most effective path.

There is no “one-size-fits-all” strategy for divorce. As your legal counsel, my first job is to listen intently to your story and your objectives. Only then can we collaboratively decide on the best path forward. Here are the primary strategic avenues we consider.

Negotiation and Settlement

I can say with confidence that the vast majority of divorce cases in Hampton Roads are resolved by agreement, not by a judge’s verdict after a trial. A negotiated Property Settlement Agreement allows you and your spouse to maintain control over the outcome, craft creative solutions that a judge might not be able to order, and significantly reduce the financial and emotional costs of litigation. A strong negotiator doesn’t just trade offers; they build a case so compelling that the other side recognizes the wisdom of a reasonable settlement.

Mediation

Mediation involves a neutral third-party—the mediator—who facilitates discussion between you and your spouse to help you reach an agreement. It is a voluntary and confidential process. We often recommend mediation for parties who are still able to communicate respectfully but need help resolving specific sticking points. It is important to attend mediation with your own knowledgeable attorney who can advise you on your rights and the legal implications of any proposed agreement before you sign it.

Assertive Litigation

Sometimes, negotiation is not possible. If you are dealing with a spouse who is hiding assets, engaging in parental alienation, refusing to be reasonable, or if there is a history of abuse, litigation may be the only path to a just result. A litigation strategy does not mean being needlessly aggressive; it means being thoroughly prepared. It involves conducting formal discovery (interrogatories, depositions), filing motions with the court, and systematically preparing for trial. Often, the most effective way to achieve a good settlement is to demonstrate to the other side that you are fully prepared and capable of winning in court.

The Military Divorce Strategy

Given our location in Hampton Roads, a significant portion of my practice involves military families. This requires a specialized strategic overlay. We must account for the rules of the Uniformed Services Former Spouses’ Protection Act (USFSPA), the division of the Thrift Savings Plan (TSP) and military retired pay, and the complexities of custody and visitation when one parent is subject to deployment or relocation (PCS).

Common, Costly Mistakes to Avoid

Over the years, I’ve seen intelligent people make critical errors under the stress of divorce. Avoiding these pitfalls is as important as any offensive strategy.

1. Moving Out of the Marital Home Prematurely: Leaving the home without a clear, written agreement on custody, visitation, and temporary support can be interpreted as abandonment and may prejudice your position in a future custody dispute. Never move out without first seeking legal counsel.
2. Trusting Informal or “Verbal” Agreements: A promise made over the dinner table is not legally enforceable. All agreements related to property, debt, and support must be in a formal, written document signed by both parties to be binding.
3. Hiding Assets or Income: This is a cardinal sin in divorce court. If you are caught (and forensic accountants are very good at their jobs), you will lose all credibility with the judge. It can result in the court awarding a larger share of the assets to your spouse and may even lead to you being ordered to pay their attorney’s fees.
4. Using Social Media as a Weapon or a Diary: Everything you post online is potential evidence. Photos of a new romantic partner, posts about lavish spending, or angry rants about your spouse can and will be used against you in court. When in doubt, stay offline.
5. Putting the Children in the Middle: Do not use your children as messengers, question them about the other parent’s activities, or speak negatively about your spouse in their presence. This behavior is incredibly damaging to children and is viewed very poorly by judges, who are focused on which parent can best foster a relationship with the other.
6. Waiting Too Long to Seek Legal Counsel: The decisions you make in the first days and weeks of a separation can have lasting consequences. Obtaining a case assessment from an experienced divorce attorney in Hampton Roads early in the process is the single best investment you can make in your future.

Glossary of Key Virginia Divorce Terms

Equitable Distribution

The legal principle in Virginia for dividing marital property and debt in a manner that is fair, but not necessarily a 50/50 split. Governed by § 20-107.3.

Grounds

The legal reason for a divorce, as required by statute. In Virginia, this includes no-fault (separation) and fault-based reasons (e.g., adultery, cruelty). Governed by § 20-91.

Marital Property

All assets and property acquired by either spouse from the date of marriage to the date of final separation, regardless of title.

Separate Property

Property owned by a spouse before the marriage, or received during the marriage as a gift from a third party or by inheritance.

Property Settlement Agreement (PSA)

A legally binding contract signed by both spouses that resolves all issues of property, debt, and support in their divorce. Also called a Marital Settlement Agreement (MSA).

Pendente Lite Relief

Latin for “pending the litigation.” A temporary court order for things like custody, visitation, and spousal/child support that remains in effect while the divorce case is ongoing.

J&DR Court

The Juvenile and Domestic Relations District Court. This is often the first court where parties in Hampton Roads will address issues of custody, visitation, and support.

Common Scenarios We See in Our Practice

Scenario 1: The Long-Term Military Marriage in Virginia Beach

Question: “My husband is retiring from the Navy after 22 years. We’ve been married for 18 of those years and have lived in Virginia Beach for the last 10. We have two teenage children. I haven’t worked outside the home since our first child was born. What can I expect regarding his military pension and getting spousal support?”

Perspective: This is a classic Hampton Roads case. The military pension is a marital asset. The marital share (the portion earned during the marriage) is subject to equitable distribution. Under the USFSPA, you are likely entitled to a direct payment from DFAS. Regarding spousal support, given the long duration of the marriage and your non-monetary contributions as a homemaker which enabled his career, a court will look very favorably on a request for long-term spousal support based on the factors in § 20-107.1.

Scenario 2: The Disputed Business Valuation in Chesapeake

Question: “My wife and I are separating after 12 years. Five years ago, she started an IT consulting business that is now very successful. She says the business is ‘hers’ and isn’t worth much, but it’s our only major asset besides the house. How do we divide this?”

Perspective: A business started during the marriage is quintessential marital property. The claim that it “isn’t worth much” is a common tactic. The strategic response is to hire a forensic accountant or business valuation professional to conduct a thorough appraisal. They will analyze cash flow, goodwill, assets, and liabilities to determine a fair market value. The court will then divide the value of the business equitably based on the statutory factors. Ignoring the business’s value is not an option.

Scenario 3: The Contested Custody and Relocation from Norfolk

Question: “My spouse and I have separated. We have a 7-year-old daughter. I have a job offer in North Carolina that would be a great opportunity for me. My spouse is threatening to fight for sole custody if I try to move. Can I take my daughter with me?”

Perspective: Relocation cases are among the most difficult. You cannot simply move out of state with the child without the other parent’s permission or a court order. If your spouse objects, you must petition the court for permission to relocate. You will need to prove that the move is in the child’s best interest, not just your own. The court will analyze the § 20-124.3 factors, with a special focus on how the move would impact the child’s relationship with the non-moving parent. This requires a carefully prepared case.

Frequently Asked Questions About Divorce in Hampton Roads

How long does a divorce take in Hampton Roads?

For a no-fault divorce based on separation, you must be separated for at least six months (with a PSA and no kids) or one year. An uncontested divorce can be finalized relatively quickly after that period. A contested divorce that goes to trial can take 18 months or longer.

How much does a divorce cost?

The cost varies dramatically. A simple, uncontested divorce where both parties agree on everything is the least expensive. A highly contested case involving business valuations, custody battles, and extensive litigation can be very costly. The single biggest factor in cost is the level of conflict between the parties.

Do I have to go to court to get a divorce?

Even in an uncontested divorce, legal documents must be filed with the Circuit Court and a final order must be signed by a judge. However, if you have a full agreement, you can often finalize the divorce “by affidavit,” without a formal court hearing.

Can I get a divorce in Virginia if my spouse lives in another state?

Yes, as long as you meet Virginia’s residency requirements. One of the parties must have been a resident and domiciliary of Virginia for at least six months prior to filing the Complaint for Divorce.

What is a Property Settlement Agreement (PSA)?

A PSA is a comprehensive contract that settles all the rights and obligations between you and your spouse, including property division, debt allocation, and support. It is the foundation of an uncontested divorce.

Is Virginia a 50/50 state for property division?

No. Virginia is an “equitable distribution” state. The court divides marital property in a way it finds to be fair and equitable, which may or may not be a 50/50 split.

Can I get alimony if I committed adultery?

Generally, adultery is a legal bar to receiving spousal support in Virginia. The only exception is if the court finds that denying support would be a “manifest injustice,” which is a very high legal standard to meet.

How is child custody decided for military members in Hampton Roads?

The same “best interests of the child” standard applies. However, the courts are very familiar with military life and will consider factors like deployment schedules and PCS moves when crafting custody and visitation plans to ensure the child maintains a strong relationship with the military parent.

Do I need a lawyer if my spouse and I agree on everything?

While not legally required, it is highly advisable for each party to have their own attorney review a proposed agreement. An attorney can ensure the agreement is drafted correctly, protects your rights, and doesn’t have unintended legal or tax consequences.

What if my spouse won’t sign the divorce papers?

If your spouse refuses to agree, you must proceed with a contested divorce. This involves filing a Complaint for Divorce, having them formally served, and letting the court process move forward. They cannot prevent the divorce indefinitely simply by refusing to sign.

Can spousal support be modified in the future?

It depends. If spousal support was ordered by a judge after a trial, it is generally modifiable upon a material change in circumstances. However, if support was agreed upon in a PSA, it may be non-modifiable if the agreement clearly states so.

Who pays the attorney’s fees?

The general rule is that each party pays their own attorney’s fees. However, the court has the authority to order one party to contribute to the other’s fees, especially if there is a large disparity in income or if one party has behaved in a way that unnecessarily increased the cost of litigation.