Divorce in the State of Virginia: Critique - Essay Example

? Divorce in the of Virginia: A short article Grade (30th, April. Divorce in the of Virginia: A short article The society we live has become so much dynamic, and the interests of individuals are changing with each passing day. Therefore, separation or the divorce of spouses is no longer an unusual occurrence, and it is neither a preserve of a few. Divorce or separation in the modern world can occur to anyone, and thus the need to have an elaborate procedure for carrying out the divorce process. The issue of divorce does not only entail the end of a marriage or union between the two individuals involved, but also other relevant and complex legal issues such as the sharing of property, the custody of the children, the financing of the children’s lifestyle, among other fine legal details (Virginia State Bar, 2013). No wonder therefore, that the issue of divorce is a fundamental legal issue in the state of Virginia, where the State has provided that for any divorce to occur, there should be sufficient grounds which are to be applied as the basis. Besides the fundamental requirements regarding sufficient grounds for completing a divorce, there are also some requirements regarding the residency of the area of jurisdiction, which also informs the settling of the divorce issue between the involved parties. Therefore, the article seeks to address the fundamental questions that different individuals might have, regarding the issue of divorce in the state of Virginia, with a focus on the types of divorce, the required grounds for completing divorce, the property rights and how they are addressed, the award of spousal support, the custody of children and the children support obligations. Types of divorce in the State of Virginia The state of Virginia recognizes two type of divorces; divorce from bed and board or divorce from the bond of matrimony (Hofheimer, 2009). The divorce from bed and board refers to the situation where the husband and wife are legally separated from each other, and they are not allowed to remarry again. This is a qualified type of divorce, under which the parties involved can then go back to the court and petition the court to merge the divorce into a divorce from the bond of matrimony, after one year has passed from the date the two were legally separated (Virginia State Bar, 2013). On the other hand, the divorce from the bond of matrimony is the absolute form of divorce, where the links between a husband and wife are permanently severed. Annulment is the other type of divorce, which takes the form of a legal decree that declares a marriage null and void, on the ground that such a marriage was entered under conditions of fraud, duress or coercion of one of the party (Stim, 2013). The Grounds for Divorce in the State of Virginia Under the Family Laws of the State of Virginia, it is provided that a divorce cannot just occur out of the mere agreement between the husband and wife. Under this law, it is required that sufficient ground should exist for effecting a divorce between a husband and wife, even where the two have mutually agreed to have a divorce (Gross & Callahan, 2006). The bases for the two types of divorces are provided for differently. The required grounds for completing a divorce from bed and board, as provided for in the State of Virginia, include a Willful desertion or abandonment, where the individuals involved have broken the bonds of cohabitation, and they have the intent to dessert or abandon each other (Virginia State Bar, 2013). Thus where sufficient grounds exist for one member of the marriage to dessert, the court will then grant the authority for the application of a divorce from bed and board. The second ground under which a divorce from bed and board can be applied is the acts of cruelty or bodily harm perpetrated by one party in the marriage, against the other (Hofheimer, 2009). Under circumstances where it is evident that one party to the marriage is capable of bodily causing harm to the other, and thus causing the marriage environment to be an unsafe for the other party to live. The most unique aspect of the Family Law of the State of Virginia is that; mental cruelty alone is not a sufficient ground for a spouse to seek for divorce (Virginia State Bar, 2013). Where the concept of mental cruelty is to be applied as the ground for seeking divorce, there should be more evidence to prove that such mental cruelty goes further to implicate on the physical or mental health state of an individual, considering that mere use of abusive words does not constitute a sufficient ground to seek for divorce. With sufficient evidence to prove the existence of further mental and physical health effects of the mental cruelty, the spouse affected can apply for divorce, immediately after being separated from the other. On the other hand, there are certain provisions for effecting divorce from the bond of matrimony which are different from the ones required to effect the first form of divorce. Under the divorce from the bond of matrimony in the State of Virginia, the law provides for an avenue for a no-fault divorce ground, where spouses can be granted a divorce from the bond of matrimony even without any form of wrongdoing from either party, as long as the spouses demonstrate to the court that both the husband and wife have intended and have continuously demonstrated the need to separate for the last one year, through staying apart and avoiding cohabitation (Virginia State Bar, 2013). The second ground for which the divorce from the bond of matrimony can be granted is the sexual acts outside marriage by either of the spouse. This could be the acts of Adultery, where either of the spouses is unfaithful to the marriage partner and has been involved in a sexual relationship act with another individual outside the marriage. Sodomy also forms a ground for seeking divorce from the bond of matrimony, where it can be proven that a spouse has been involved in acts of sexual pleasure, other than intercourse with another individual outside the marriage (Stim, 2013). The sexual acts against nature, also referred to as buggery, which may include bestiality, are fundamental grounds upon which an individual may seek for a divorce from the bond of matrimony. Finally, the conviction of a felony by either of the spouse also acts as a sufficient ground for seeking a divorce from the bond of matrimony, if it is a fact that the husband or wife who committed the felony has been confined for a period of more than one year, and that the other spouse did not engage in the act of cohabitation with the guilty individual after the knowledge of the confinement (Gross & Callahan, 2006). The divorce legal proceedings This refers to the legal process that is followed by the spouses to apply and have the divorce completed through a court of law. The first step in the divorce legal proceeding is the filing of a complaint by the plaintiff, in this case being the individual who is applying to have the marriage annulled and a divorce granted (Virginia State Bar, 2013). In the complaint filed, the plaintiff has to state the prove of residency in the State of Virginia, as well as the duration of marriage, the fundamental grounds for applying divorce and the dates of birth of the minor children, if the couple have any. After the complaint is filed, the plaintiff is then required to serve the defendant with the complaint, who is then required to file answers with the court, either accepting or denying the claims (Gross & Callahan, 2006). The defendant can also file counterclaims, which then sets the stage for the court to undertake an inquiry into the complaints and the counterclaims, with the burden of prove being borne by the spouses. The court then institutes the hearing, and the waiting duration is relative, ranging from a month to 18months. At the end of the necessary duration, a settlement agreement is granted, and where substantial grounds for a divorce exist, then it is granted. Dividing Marital Property Once a divorce has been filed, processed and completed, the next step that follows is the division of the marital property between the former spouses. The laws of the State of Virginia provides for an equitable distribution decree, once a divorce has been formalized (Stim, 2013). This provision requires that all marital property, which is property, acquired during the marriage duration and may include all the properties that are owned jointly the other family properties and any other associated property aside from the separate property should be shared equitably between the former spouses. The important thing to note is that equitable distribution does not refer to distributing the property equally, but the distribution of the property based on various factors that are determined by the court, such as the contribution of each individual to the property, the non-monetary contribution to the welfare of the family and the acquisition and management of the property, as well as the issues of inheritance and the custody and obligations to children (Hofheimer, 2009). Child Custody and Visitation The legal principle applied in determining the spouse who gains the custody of the child in the State of Virginia, is the best interest of the child (Virginia State Bar, 2013). However, certain legal principles are applied before the ultimate principle of best interest of the child is applied, to aid the court in determining who gains the custody of the child. Such legal principles include parental rights, where a parent has a supreme right to gain the custody of the child, unless when the parent is proven to be incapable and unfit. Additionally, the continuity of placement is another principle applied by the court in the State of Virginia to determine the custody of children, which states that if the children are doing well where they are, then things should not be messed up by moving them elsewhere (Gross & Callahan, 2006). The preference of the child is also another key consideration applied by the court, as well as other factors such as the age of the custodian, the health status, the religion and other social practices. Through applying these considerations, a court then determines the custody of the child. The visitation schedule of the child can be made by the parents and when they agree, then, the court approves the plan (Stim, 2013). The schedule includes the amount of time spent with each parent and the payment of the transport fees by the parties, if they live far from each other. The visitation principle is upheld by the courts in the State of Virginia, unless under extraordinary circumstances, where the court may decline visitation to either of the spouse, based on the prevailing circumstances of the divorce. Spousal and Child Support The concept of Spousal and child support is yet another fundamental concept of the divorce process, which entails determining the amount of support, if any, that the children or either of the spouses should be granted. First, the aspect of Spousal Support is determined through considering the cause of separation (Stim, 2013). Thus, the duration of the marriage, the earning potential and the age of the parties is considered when determining the amount of spousal support, which then can be granted in lump sum or in periodic payments (Hofheimer, 2009). The spousal support does not necessarily have to be granted when a divorce is granted, but can be reserved for a future date, and the amounts awarded can continuously change, depending on the changing circumstance of the parties involved. On the other hand, Child support depends on the number of children, the duration of living with them, and the earnings of the parents (Virginia State Bar, 2013). The non-custodial parent who is receiving visitation is required to give a certain percentage of their earnings in support of the children, which might be adjusted depending on the circumstances. Conclusion Divorce has become more common in modern day, as opposed to the traditional times, where the family value reigned supreme. This has necessitated the introduction of legal provisions guiding the concept of divorce. The State of Virginia has enacted various legal guidelines that provide the guidance for effecting the divorce process, which entails the determination of the necessity for divorce through the application of various grounds. The laws also provides for the concepts of spousal support, children custody and support, marital property division and the concept of visitation for the children of the spouses, based on the custody given upon divorce. Thus, the Virginia State divorce laws are comprehensively enacted to effect divorce and cater for the subsequent legal issues that arise after a divorce is granted. References Gross, J. J. & Callahan, M. (2006). File for divorce in Maryland, Virginia or the District of Columbia. Naperville, Ill: Sphinx Pub. Hofheimer, C. R. (2009). What every Virginia woman should know about divorce. Tarentum, Pa: Word Association Publishers. Stim, R. (2013).Virginia Laws on Divorce. DivorceNet.com. http://www.divorcenet.com/states/virginia/va_div Virginia State Bar (2013). Divorce in Virginia. http://www.vsb.org/site/publications/divorce-in-virginia/ Read More