The state of Virginia has performed same-sex marriages since October 6, 2014, and recognized such unions from other states. Less than one year later, the Supreme Court ruling in Obergefell v. Hodges made them legal nationwide and bounded all judges to recognize same-sex marriages in every state.
Same-sex divorce in Virginia can be obtained if one of the spouses meets the residency requirements — six months of continuous living within the state. As for the conditions of a gay divorce in Virginia, they are the same for all couples regardless of their sexual orientation.
Marriage dissolution, legally called a Divorce from the Bond of Matrimony, can only be obtained if the marriage was official. Unlike some other parts of the U.S., Virginia does not recognize common-law marriage.
Same-sex divorce online
Generally, married couples have two choices to prepare same-sex divorce paperwork in Virginia. The first option is to hire an attorney, and the second one is a do-it-yourself divorce, which is more inexpensive because it does not require a lawyer.
Same-sex spouses who file for divorce in Virginia and dissolve their same-sex marriage with the help of an attorney spend more money than those who choose an option of divorce over the Internet, which is a quick and easy way to end a marriage by yourself.
Therefore, it is quite common for couples with uncontested divorce to proceed with their case without a lawyer with the help of online services. For example, any person married to a same-sex partner can get a divorce in Virginia using an affordable web platform virginiaonlinedivorce.com, designed to prepare and provide its clients with printable documents for a small price $139.
Same-sex divorce papers in Virginia
Under Virginia law, the divorce proceedings start when one of the spouses files the required documents with the county clerk’s office. But how to file a same-sex divorce in Virginia? The good news is that the divorce process in Virginia for same-sex couples is the same as for heterosexual ones. The official procedure requires the submission of particular papers and paying filing fees.
The same-sex divorce papers in Virginia, which have to be submitted to the Circuit Court, include:
- Divorce Complaint (that contains such information as residency, date of marriage, and each party’s military status) and its copy;
- VS-4 State Statistical Form;
- Domestic Case Cover Sheet.
These are the basic initial same-sex divorce forms in Virginia. It is very important to complete them correctly because they will not be accepted. If you do not have any legal background, you should either hire an attorney or use online services.
Valid grounds for same-sex divorce in Virginia
Spouses can file for divorce in Virginia to end their same-sex marriage in a county where one of them has permanently lived for six months before filing for divorce. A person who files the case is called a plaintiff and the other party is called a respondent.
A couple can get a same-sex divorce in Virginia by providing the court with one of the following fault-based grounds:
Adultery, sodomy, or buggery committed outside the marriage;
A felony conviction for one year without subsequent cohabitation;
Cruelty or abandonment for one year.
A couple must also meet certain requirements to file for divorce in Virginia on no-fault grounds. Spouses without children must live separately by their choice for one year. Couples with minor children and written separation agreement can reduce this period to six months. (VA Code § 20-91).
Custody of the Child
In any proceeding that involves minor children, a court must decide an issue of child custody. There are several types of custody: legal and physical custody, each of which can be sole or joint. Each parent has equal rights to be awarded custody over their child.
Family law in Virginia gives preference to shared parental custody when both parents participate in their child’s life. Either parent may be ordered by the court to undergo an independent examination to assess their mental health. If they successfully pass this evaluation and are fit in other ways to be custodial parents, a judge will review the following factors to decide the type of custody and its recipient:
- the age, health, and mental state of children and both parents;
- the existing relationship between parents and a child;
- the needs of the child;
- each parent’s role in the child’s upbringing;
- the willingness of each parent to support close contact between a child and another parent;
- if one of the parents was charged with child abuse or domestic violence;
- preference of a child;
- other relevant factors (VA Code § 20-124.3).
Parents with children have to attend a parenting class if their case is contested. Otherwise, it is not mandatory. However, the court may still require the parties to enroll in this short education program if there is a good cause.
Child Support
Basic child support obligation is calculated according to state guidelines that are based on the Income Shares Model. The formula includes combined monthly gross income and the number of children (VA Code § 20-108.2). Gross income for these purposes includes but not limited to wages, salaries, pensions, social security benefits, rental income, received spousal support, etc.
For example, if both parents’ monthly income is $1,000, the amount of payment for one child will be $187, for two - $285, for three - $346. If a combined income is higher than $35,000, the amount of child support will be a sum of the one for $35,000 and a set scheme of percentages.
Child support is terminated when a child reaches 18 or graduates from high school, whichever comes later. However, if a child is physically or mentally disabled, a court may order to continue the payments.
Spousal Support
In every proceeding, a court may order one spouse to pay financial support to another in periodic payments of defined or undefined duration. In determining the nature and amount of maintenance, a judge will consider the following factors (VA Code § 20-107.1):
- the financial resources of each party, their needs, and obligations;
- the standard of living during the marriage;
- the length of marriage;
- age and health of the parties;
- child-care-related circumstances that prevent a spouse from seeking employment;
- each party’s contribution to the joint wealth;
- the property interests of the spouses;
- provisions concerning the marital property.
Any spouse can apply for a modification of support order or its termination upon the following:
- remarriage of a spouse receiving support;
- the retirement of a paying spouse;
- the death of any of the parties.
Property Division
In Virginia, marital property is distributed equitably between spouses. It means that everything that was acquired during the marriage shall be divided in fair proportions. On the other hand, separate property is not subject to division and belongs to its primary owner. It includes all property acquired before marriage or during it by gift, inheritance, or descent.
How is property divided for gay spouses? Divorce laws concerning property division in Virginia are the same for same-sex unions and straight couples. A judge will divide assets and debts after consideration of the following factors:
- the contribution of each spouse to the well-being of the family and its further maintenance;
- the duration of the marriage;
- age and health of the parties;
- spousal misconduct;
- debts and liabilities of each party;
- the tax consequences;
- instances of the property dissipation;
- other factors (VA Code § 20-107.3).
Mediation support
Mediation is a way to resolve conflicts between spouses outside the courtroom. This process covers such issues as child custody, visitations, property division, child and spousal support, and so on. Every couple can be referred to mediation to reach an agreement before the next court hearing.
Negotiations between spouses are facilitated by a third party called a mediator. Each county clerk’s office has a list of approved mediators in your area. This person directs the whole process and helps the parties to reach an amicable agreement. If it cannot be reached, the judge will decide how to handle contested issues at their discretion.
Mediation is usually cheaper and faster than if you go to trial. Besides, it is better to make your own decision than entrust it with someone else’s hands.
Filing fees for same-sex divorce in Virginia
Filing fees can vary depending on the county and the complexity of your case. For example, in Fairfax and Loudon county, you will have to pay $86 to file your complaint. If you are not able to pay the fee, you can ask for a waiver. In this case, you have to provide the court with the necessary financial information that corroborates your inability to pay.
When all necessary papers have been filed, you need to decide how to serve your spouse. They can be delivered by a Deputy Sheriff or a private process server. This decision will affect the price that you will have to pay for the service. If you use the sheriff’s help, it will cost around $12 and take three to five working days
A person married to a same-sex partner can get a divorce in Virginia if the spouse is out of state by serving them the copies of documents with the help of a Sheriff or a personal server. For the Sheriff’s service, payment must be included in the initial fees according to local rules.
How long it will take
Divorce for same-sex couples in Virginia can be obtained only after a six to twelve months waiting period. Couples with fault-based cases (e.g., adultery) can file for same-sex divorce in Virginia immediately. But they will have to go through the process of providing evidence of the other party’s misconduct. Such couples will not get the final decree as fast as those with uncontested separation because they will have to wait for a divorce trial. The length of divorce process for contested cases can extend from six months to several years. On the other hand, spouses who agreed on all issues of their separation can be sure to end their marriage in a couple of months.
Frequently asked questions
