Family law in US: Virginia: overview
A Q&A guide to family law in the United States: Virginia.
The Q&A gives a high level overview of key issues including jurisdiction and conflict of law; pre- and post-nuptial agreements; divorce, nullity, and judicial separation; children; surrogacy and adoption; cohabitation; family dispute resolution; civil partnership/same-sex marriage; and controversial areas and reform.
To compare answers across multiple jurisdictions visit the Family Country Q&A tool.
This Q&A is part of the global guide to Family law. This contribution, in its original form, first appeared in Family Law (2nd edition), General Editor James Stewart of Penningtons Manches LLP.
Family Law was published in association with the International Academy of Matrimonial Lawyers.
For a full list of jurisdictional Q&As visit www.practicallaw.com/family-mjg.
Jurisdiction and conflict of law
Sources of law
The primary source of law in family law proceedings within the Commonwealth of Virginia is Title 20 of the Virginia Code. Title 20 covers practically all issues arising out of the dissolution of a marriage.
The main statutes governing matrimonial law can be found in Chapter 6 and Chapter 6.1 of Title 20 of the Virginia Code.
In relation to cases where the parties are unmarried or they do not have grounds for divorce, Title 16.1 of the Virginia Code includes a variety of laws regarding children or involving children, including protective orders, abuse and neglect proceedings, juvenile delinquency issues, custody and visitation, child support, and spousal support.
There are two main trial court systems in Virginia that address and resolve family law issues:
The Juvenile and Domestic Relations Court (JDR Court). The JDR court has jurisdiction over the majority of family law issues, with the exception of divorce and equitable distribution. However, the JDR Court is not a court of record and as a result, an unhappy or unsatisfied litigant can "appeal" to the Circuit Court for a trial de novo without any basis or grounds for appeal.
The Circuit Court. The Circuit Court is a court of record and it has jurisdiction over divorce cases and equitable distribution cases. The Circuit Court and the JDR Court have concurrent jurisdiction over matters involving custody, child support and spousal support. Any appeal from the Circuit Court requires an abuse of discretion to be heard by the Court of Appeals.
Very few family law cases are appealed to the Supreme Court of Virginia.
At least one of the parties must be and have been a bona fide resident and domiciliary of Virginia for at least six months preceding the divorce action (see Question 3). These requirements are jurisdictional. Without satisfaction of both requirements, a divorce cannot be granted.
The domicile and residency requirements confer subject matter jurisdiction. However, without personal jurisdiction over a defendant, the court cannot enter orders creating, modifying or extinguishing spousal support or marital property rights. A divorce may be granted to a plaintiff without personal jurisdiction over the defendant (ex parte divorce). However, in the absence of personal jurisdiction, consent or having a significant connection to Virginia, no support or property rights affecting the defendant can be determined.
Personal jurisdiction can be obtained over a defendant as follows:
Persons found in Virginia:
by delivering a copy of the summons and complaint directly to the party in person (section 8.01-296, Virginia Code);
by substituted service wherein the summons and complaint are delivered to a person 16 years or older at the party's residence if he/she is not found there; or posting at the front door or main entrance of the party's residence (section 8.01-296, Virginia Code);
For residents and non-residents of Virginia: by the defendant's acceptance of service or waiver of service in a notarised writing, or by the defendant's filing of an answer in the action (section 20-99.1:1, Virginia Code).
Personal jurisdiction will not be conferred on a non-resident defendant even if there is valid service of process as stated above, unless the defendant also has a significant connection to Virginia. A person can obtain long-arm jurisdiction over a party if the person has a significant connection to the Commonwealth of Virginia, for example by (section 8.01-328.1, Virginia Code):
Transacting business in Virginia.
Causing tortious injury in Virginia.
Entering into contracts in Virginia.
Having an interest in real property in Virginia.
Contracting for insurance in Virginia.
Executing an agreement to pay support in Virginia, having maintained a matrimonial domicile in Virginia at the time of separation.
However, in divorce actions, the most compelling basis for exercising long-arm jurisdiction is the parties having maintained a matrimonial domicile in Virginia at the time of separation.
Sections 20-88 to 32-88.82 of the Uniform Interstate Family Support Act (UIFSA) in Chapter 5.3 of Title 20 of the Code of Virginia provides the jurisdictional bases for the establishment and enforcement of child support orders over a non-resident parent. In general, personal jurisdiction can be exercised over a non-resident parent if either:
There is personal service in Virginia.
He consents to jurisdiction.
He resided with the child in Virginia.
He resided in Virginia and paid support for the child.
The child resides in Virginia due to the acts of the non-resident parent.
Personal jurisdiction is authorised by law.
There is any other basis consistent with the constitutions of Virginia and the US.
These bases are generally not available for the purpose of modifying a support order of another state. A "state" may be a foreign country if the country either:
Is declared a foreign reciprocating country.
Has established reciprocity with Virginia.
Has laws substantially similar to Virginia's concerning the establishment and enforcement of child support orders.
For a discussion of jurisdictional issues in custody cases, see Question 3.
Domicile and habitual residence
Virginia can only decree a divorce if at least one of the parties is resident and domiciled within the state for at least six months before filing the divorce action (see Question 2). Domicile and residence are not synonymous. "Residence" is where a person maintains a permanent abode or residence (Hiles v Hiles, 1 64 Va. 131 (1935)). "Domicile" is typically defined as a physical presence combined with the intention to live there permanently or indefinitely, Howe v Howe, 179 Va. 111, 119 (1942)). While a person may have multiple residences at any one time, a person can only have one domicile. Residency is more objective, domicile is more subjective.
Section 20-97 of the Virginia Code addresses jurisdiction issues concerning military and foreign service officers. If a member of the armed forces has been stationed or resided in Virginia for six months or more before the divorce action, he is presumed to be domiciled in and to have been a bona fide resident of Virginia.
If an armed forces member or a foreign service officer is stationed outside of Virginia but was domiciled in Virginia for six months before that station, he is deemed to have been domiciled in and to have been a bona fide resident during the six months before the divorce action.
The six month requirement also applies to habitual residence, in the US this is referred to as the "home state". However, home state does not necessarily equate with the concept of habitual residence as used in the HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention). Virginia has enacted the Uniform Child Custody and Enforcement Act (UCCJEA) to address multi-jurisdictional custody battles. Virginia can assert jurisdiction over a custody dispute under the UCCJEA where Virginia either (section 20-146.12(A), Virginia Code):
Is the home state of the child at the date of the commencement of custody proceeding.
Was the home state of the child within six months before the commencement of the proceeding and the child is absent from Virginia but a parent or person acting as a parent continues to live in Virginia.
However, a temporary absence from the state does not interrupt the home state status (section 20-146.1, Virginia Code).
Conflict of law
A party applying to stay proceedings in favour of a foreign jurisdiction would file a Motion to Stay Proceedings, and would docket the matter to be determined by a judge. Depending on the judge, the parties may be required to file written briefs in support of or against the Motion.
When one party applies to stay proceedings in Virginia in favour of a foreign jurisdiction, the Virginia court will first decide whether Virginia properly has jurisdiction over the pending action. If the court determines it does have jurisdiction, it will determine whether it is appropriate to defer to a foreign court. However, if Virginia has jurisdiction, it is rare for Virginia to defer to a foreign court. In these cases, there may be a race to judgment between Virginia and the foreign court. Where the issues involve child custody proceedings, the UCCJEA governs. Factors the Virginia court will consider in child custody proceedings include:
Whether the court has initial child custody jurisdiction (section 20-146.12, Virginia Code).
Whether another state has temporary emergency jurisdiction such as in the case of abandonment or abuse (section 20-146.15, Virginia Code).
Whether there are simultaneous proceedings in two jurisdictions. If so, Virginia will usually stay its proceedings if the matter was previously commenced in a foreign court which exercised jurisdiction in substantial conformity with the UCCJEA. In these situations under Virginia law, the Virginia court must work with the foreign court to determine whether Virginia would be the more appropriate forum (section 20-146.17, Virginia Code).
Whether Virginia is an inconvenient forum. Under the inconvenient forum analysis, Virginia can decline to assert jurisdiction if the court determines that Virginia is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum (section 20-146.18, Virginia Code).
Finally, Virginia can decline jurisdiction even if it could properly assert jurisdiction on the basis of a party's unjustifiable conduct (section 20-146.19, Virginia Code).
Pre- and post-nuptial agreements
Validity of pre- and post-nuptial agreements
Pre-and post-nuptial agreements are usually binding in Virginia. Virginia has adopted the Uniform Premarital Agreement Act designed to ensure that these agreements are declared as valid and enforceable contracts. This Act also applies to post-nuptial agreements (sections 20-147 to 20-155, Virginia Code). These agreements may relate to the disposition of property after separation, divorce, death, or any other event, and will be treated as binding contracts (Dowling v Rowan, 270 Va. 510, 516 (2005), citing section 20-150, Virginia Code).
As long as the agreement is in writing and signed by both parties, the agreement is enforceable regardless of consideration (monetary or otherwise) and is effective on marriage (section 20-149, Virginia Code). Married persons can also enter into these agreements, which are binding immediately on execution (section 20-155, Virginia Code).
An agreement is not enforceable if either (Uniform Premarital Agreement Act):
A person did not execute the agreement voluntarily.
The agreement was unconscionable when it was executed and, before execution of the agreement, that person (section 20-151, Virginia Code):
was not provided with a fair and reasonable disclosure of the property or financial obligations of the other party; and
did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.
Important cases concerning premarital agreements include Flanary v Jackson, 263 Va. 20 (2002); Chaplain v Chaplain, 54 Va. App. 762, 776 (2009); Derby v Derby, 8 Va. App. 19 (1989); Gaffney v Gaffney, 45 Va. App. 655, 667 (2005).
Divorce, nullity and judicial separation
Recognition of foreign marriages/divorces
The general rule in Virginia is that a marriage valid where celebrated is valid everywhere, unless it is against Virginia's strong public policy (Heflinger v Heflinger, 136 Va. 289 (1923) and Kleinfeld v Veruki, 7 Va. App. 183 (1988)).
Bigamous, polygamous and incestuous marriages are prohibited (section 20-38.1, Virginia Code). Until 2014, marriages between persons of the same sex were prohibited (see sections 22 and 26, Virginia Code). Marriages between one or more individuals under the age of 18, unless certain exceptions apply, are also considered invalid.
The US is not a signatory to the HCCH Convention on the Recognition of Divorce and Legal Separations (Hague Divorce Convention) (978 United Nations Treaty Series 399 (1975)). The question of whether divorces obtained outside Virginia and outside the US will be enforced is a matter of comity.
"'Comity', in the legal sense, is neither a matter of absolute obligation, on the one hand, nor one of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws" (Oehl v Oehl, 221 Va. 618, 622 (1980) quoting Hilton v Guyot, 159 U.S. 113, 163-64 (1895)).
If the foreign jurisdiction has requirements similar to those of Virginia, such as domicile and residence, then it is likely that Virginia would recognise a divorce entered by that foreign jurisdiction.
Section 20-91 of the Virginia Code provides the grounds on which an absolute divorce can be granted by a Virginia court. It provides three fault grounds for divorce and one no-fault ground based on the parties' separation.
Most divorces are granted on the no-fault ground of the parties living separate and apart without any cohabitation and without interruption for more than one year (Hooker v Hooker, 215 Va. 415 (1975) and section 20-91(A)(9)(a), Virginia Code). A divorce can be granted after only six months if a separation agreement has been executed and there are no minor children (section 20-91(A)(9)(a), Virginia Code).
The three fault grounds for divorce are:
Adultery, sodomy or buggery committed outside the marriage (adultery).
Conviction for a felony.
Cruelty or desertion.
To be granted a divorce in Virginia, it is not enough for one or both of the parties to testify to the separation or to the fault, nor can they stipulate to it.
To prevent collusion, a third party must corroborate the grounds for divorce.
Divorce from bed and board (judicial separation)
A divorce from bed and board is different from an absolute divorce in that the marriage is not permanently terminated. When an absolute divorce is granted, the marriage is terminated and each party is free to remarry. If a divorce from bed and board is granted, the parties are declared indefinitely separated, but they are unable to remarry unless and until an absolute divorce is later granted.
The grounds for a divorce from bed and board are (section 20-95, Virginia Code):
Cruelty or reasonable apprehension of bodily hurt.
Wilful desertion or abandonment.
The grounds for a bed and board divorce are similar to the cruelty and desertion grounds that apply in an absolute divorce, except that there is no one-year waiting period. At the end of the year, the divorce from bed and board action can be merged into an action for absolute divorce.
Defences to divorce actions
Defences available to divorce actions include (Peter Nash Swisher, Lawrence D. Diehl, & James Ray Cottrell, Family Law: Theory Practice and Forms 214-222 (Virginia Practice Series, Vol. 9, 2014)):
Connivance: consent (conspiracy together).
Collusion: fabrication or fraud.
Condonation and cohabitation: conditional forgiveness.
Recrimination: both guilty.
Insanity: insanity may be a bar to a fault-based divorce only.
Lack of jurisdiction or due process notice.
Lack of corroboration.
Fraud and duress.
Laches and estoppel.
A marriage can be annulled and considered void due to:
Lack of licence and solemnisation (section 20-13, Virginia Code).
Bigamy, polygamy and incest (section 20-38.1, Virginia Code).
Lack of capacity or the parties are underage (section 45.1, Virginia Code).
Fraud or duress (section 20-89.1, Virginia Code).
A marriage can also be annulled:
In cases of natural or incurable impotency existing at the time of the marriage.
If, before the marriage without knowledge of the other, a party was convicted of a felony.
If, at the time of the marriage without knowledge by the husband, the wife was pregnant with another man's child.
Where the husband without knowledge of the wife had fathered a child born to a woman other than his wife within ten months of the marriage.
Where before the marriage, without knowledge of the other, either party had been a prostitute.
In these latter situations, an annulment will not be granted if the parties had been married for two years before the annulment action.
Finances/capital and property
Section 20-107.3 of the Virginia Code (ED statute) governs the equitable distribution of property as part of a divorce. Property is divided "equitably" and there is no requirement for equal division of property. The court must classify value and divide the property. Division is based only on the 11 factors of the ED statute (see Question 9).
For each item of property, the court must determine whether it is marital, separate, or part marital and part separate (hybrid property).
Marital property. Includes all property titled in the joint names of both parties, and all other property acquired by each party during the marriage that is not separate property (this can include property titled in only the name of one spouse). Property acquired during the marriage and before separation is presumed to be marital property.
On divorce, all marital property is subject to equitable distribution. A court can divide or transfer jointly owned marital property, order a monetary award to either party, and apportion marital debts. There is no statutory presumption that marital property will be equally divided, but in practice that is often the most likely result.
Separate property. Separate property is not subject to equitable distribution. It includes:
Property acquired before the marriage.
Property acquired by inheritance or gift from a source other than from the other party during the marriage.
Property acquired in exchange for or from the proceeds of sale of separate property, provided it is maintained as separate property (and not commingled). If there is commingling of separate property with marital property, it may be classified as hybrid property.
Hybrid property. Hybrid property is part marital and part separate as further described in subsection A3(e) of the ED statute.
Once the property has been classified, it must be valued. The value of property must be based on more than mere guesswork (Peter Nash Swisher, Lawrence D. Diehl and James Ray Cottrell, Family Law: Theory Practice And Forms 778-804 (Virginia Practice Series, Vol. 10, 2011)). The generally accepted standard is fair market value, that is, the value at which property would change hands between a willing buyer and a willing seller, both:
Neither one being under any compulsion to either buy or sell.
Both having a reasonable knowledge of the relevant facts.
However, in Virginia, the court can also consider the intrinsic worth to the parties (Howell v Howell, 31 Va. App. 332, 338 (2000)). As stated in Bosserman v Bosserman, 9 Va. App. 1, 6 (1989), intrinsic value is subjective. The methods of valuation must take into consideration the parties themselves and their different situations. The parties must rely on accepted methods of valuation, but the particular method of valuing and the precise applicability of that method to the singular facts of the case must vary with the varying situations that exist among married couples. Given the complex nature of valuing assets, expert opinions are often necessary to value property.
Once the assets have been classified and valued (see Question 8), the court must determine how the assets will be distributed. There are ten factors and one catch-all factor including (section20-107.3.E, Virginia Code):
Monetary and non-monetary contributions to the wellbeing of the family.
Contributions of each in the acquisition, care and maintenance of marital property.
Duration of the marriage.
Ages, physical and mental condition of the parties.
Circumstances and factors which contributed to the dissolution of the marriage.
How and when items of marital property were acquired.
Debts and liabilities of each spouse.
Liquid or non-liquid character of all marital property.
Use or expenditure of marital property for a non-marital purpose or dissipation of funds, in anticipation of divorce or separation or after separation of the parties.
Such other factors necessary or appropriate to arrive at a fair and equitable monetary award.
Need is not a factor in the distribution of marital property.
Judges in Virginia have wide discretion in dividing marital property and it is difficult to ascertain a particular trend. However, a few cases are good examples of how certain unique issues were resolved:
McIlwain v McIlwain, 52 Va. App. 644 (2008). The husband was charged with a payment to the wife equal to one-half the fair rental value of the home during the time he lived there between the date of separation and divorce.
Fadness v Fadness, 52 Va. App. 833 (2008). The husband was not entitled to more than 52% to 55% of the marital assets based on wife's cruelty.
Gilliam v McGrady, 279 Va. 703 (2010). There is no presumption with respect to the classification of debts incurred during marriage before the last separation, individually or jointly. If a debt is jointly created during the marriage, it is presumed marital and the burden then shifts to the other party to show otherwise. A debt incurred individually makes a prima facie case that it was separate and the burden is on that spouse to prove it is marital.
Duva v Duva, 55 Va. App. 286 (2009). A house purchased by the husband before marriage was transmuted from separate property to marital property due to mortgage payments made during the marriage.
Schuman v Schuman, 282 Va. 443, 717 S.E.2d 410 (2011). The Supreme Court of Virginia affirmed that for the purposes of equitable distribution, the wife's restricted stock awards constituted deferred compensation for work performed during the marriage and were marital property, even though they did not vest until after the parties had separated.
Patel v Patel, 61 Va. App. 714 (2013). A negative value to certain of the husband's assets was not assigned even though neither of the parties disputed a negative value.
Section 20-107.1 of the Virginia Code provides courts with authority to award spousal support. There is no formula or guideline. In determining the nature, amount and duration of support, 13 factors must be considered, including:
Obligations, needs and financial resources.
Standard of living during marriage.
Duration of marriage.
Age, physical and mental condition of the parties.
Contributions to the wellbeing of the family.
Property interests of the parties.
Division of marital property.
Education, training to improve earning capacity.
Decisions during marriage regarding employment and career.
Contributions to attainment of education, training, career or profession of the other.
Other factors, including tax consequences.
Support can be ordered for a defined duration, an undefined duration or in a lump sum, or in any combination of these (section 20-107.1, Virginia Code).
Unless otherwise provided by stipulation or contract, spousal support terminates by statute on the death of either party or the recipients' remarriage (section 20-109.D, Virginia Code). Support can also terminate if the spouse receiving support cohabits with another person in a relationship analogous to marriage for one year or more (section 20-109.A, Virginia Code).
In addition, support can be modified if support was ordered by the court, or if it was made modifiable by written agreement of the parties. Support of an undefined duration is subject to termination or modification as to amount or duration, as the circumstances may make proper (section 20-109.A, Virginia Code). If support is of a defined duration, on consideration of the factors set forth in subsection E of section 20-107.1, the court can increase, decrease or terminate the amount or duration of the award on making certain findings provided in section 20-109.B of the Virginia Code.
Marital fault is relevant to the entitlement to receive support. However, the only fault ground which is an absolute bar to receiving spousal support is adultery (subject to a narrow exception of a "manifest injustice") (section 20-107.1(B), Virginia Code).
It is common for spousal support to be awarded to a spouse, if he or she is entitled to the same after consideration of the spousal support factors. Much of the litigation concerning support awards centres around income earning capacity, particularly in cases where one spouse has stopped working to raise the parties' children or where one spouse has been guilty of adultery (which in most cases is an absolute bar to a spousal support award).
A number of cases in Virginia focus on the role of fault and the application of the "manifest injustice" exception, which is applied to cases in which spousal support may be denied due to adultery of the spouse seeking support. If the court determines from clear and convincing evidence that a denial of support and maintenance would constitute a manifest injustice, based on the respective degrees of fault during the marriage and the relative economic circumstances of the parties, support can be awarded despite the statutory bar. A few cases illustrating the manifest injustice exception include: Congdon v Congdon, 40 Va. App. 255, 264-65 (2003); Wright v Wright, 38 Va. App. 394 (2002) Dailey v Dailey, 59 Va. App. 734 (2012); Wright v Wright, 61 Va. App. 432 (2013).
Child support is presumptively calculated based on codified Virginia Child Support Guidelines (section 20-108.2, Virginia Code). The guidelines are based on the parties' respective gross incomes, the time-sharing arrangements, the costs of work-related childcare, and health insurance costs for the children. To rebut the presumption, the court is required to make written findings, taking into account the factors provided in section 20-108.1. The factors include:
Support provided to other family members.
Imputation of income.
Debts related to the child.
Life insurance costs.
Special needs of a child.
A child's independent financial resources.
The standard of living during the marriage.
The court can order a party to maintain an existing life insurance policy for the benefit of the children, and to require the parents to share the reasonable and necessary unreimbursed medical and dental expenses of a child. Child support is generally paid until a child reaches the age of 18. However, if a child is still in high school on his or her 18th birthday, then child support continues to be paid until the child graduates from high school or turns 19 years of age, whichever first occurs.
Reciprocal enforcement of financial orders
Virginia gives full faith and credit to foreign orders if the foreign court had proper jurisdiction over the matter. Virginia may also recognise foreign orders on the basis of comity even where not required to under the Full Faith and Credit Clause of the US Constitution (Price v Price, 17 Va. App. 105 (1993)). Comity allows Virginia to treat a foreign order as if it were a Virginia order for the purposes of enforcement. However, this is premised on the foreign order not violating Virginia's public policy (McKeel v McKeel, 185 Va. 108 (1946)).
The Uniform Interstate Family Support Act (UIFSA) has been enacted in all 50 US states and mandates the terms of enforcement of support orders arising in other states and countries (section 20-88.32 et seq, Virginia Code). The UIFSA allows for the enforcement of support obligations in proceedings involving multiple states. Virginia enforces foreign support orders and determines the amount (if any) of support arrears together with directing the appropriate method of payment (UIFSA) (Gagne v Chamberlain, 31 Va. App. 533, 537 (2000)).
For Virginia to enforce a foreign financial order, the foreign order must first be registered within Virginia. Procedures to register support orders or income withholding orders of another state are provided in section 20-88.67 of the Virginia Code. Once properly registered, the foreign order is enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of the Commonwealth of Virginia (section 20-88.68(B), Virginia Code).
However, unless specifically excepted elsewhere in section 20-88.32 et seq., foreign registered orders can only be enforced but not modified if the foreign state/country had jurisdiction over the matter (section 20-88.68(C), Virginia Code). Procedures to register a child support order of another state for modification purposes are provided in section 20-88.74 of the Virginia Code.
Financial relief after foreign divorce proceedings
Following entry of a foreign divorce order, a Virginia court can enter an equitable distribution order if all of the following apply (section 20-107.3(J), Virginia Code):
One of the parties was domiciled in the Commonwealth of Virginia when the foreign proceedings were commenced.
The foreign court did not have personal jurisdiction over the party domiciled in the Commonwealth.
The proceeding is initiated within two years of receipt of notice of the foreign decree by the party domiciled in the Commonwealth.
The court obtains personal jurisdiction over the parties under subdivision A 9, section 8.01-328.1, or in any other manner permitted by law. This is known as the "divisible divorce" doctrine.
Legal custody refers to a parent's ability to make decisions on behalf of his or her child. A court can order joint or sole custody (section 20-124.1, Virginia Code). Both legal and physical custody are governed by a variety of factors, which are codified in section 20-124.3 of the Virginia Code. These factors are often referred to as the "best interest" factors, and the court must consider them in making custody determinations. In determining custody, whether legal or physical, there is no presumption of law in favour of either parent (section 20-124.2(B) as amended, Virginia Code).
The concept of access to a child is called physical custody and is defined as physical care and supervision of a child (section 20-146.1, Virginia Code). The court can order joint physical custody to both parents or sole physical custody to one parent. Joint physical custody means both parents share physical and custodial care of the child (section 20-124.1, Virginia Code). Sole physical custody means that one parent has primary or sole custodial care of the child. Physical custody includes rights of visitation or access. Therefore, while one parent may be granted sole physical custody, the other parent is usually granted rights of visitation or access.
The factors the court considers when making a determination of legal or physical custody include (section 20-124.3, Virginia Code):
Ages of the child and parents.
Physical and mental condition of the child and parents.
Relationships between the parent and child.
Sibling and other familial relationships.
Role each parent has played.
Ability of each parent to maintain a close and continuing relationship with the child.
Ability of the parents to resolve disputes.
Reasonable preference of the child.
History of family abuse.
There are additional protections, including an expedited trial and the issuance of temporary, deployment-specific orders, for the custodial rights of parents who are in the military and are facing deployment (Military Parents Equal Protection Act (sections 20-124.7 to 20-124.10, Virginia Code)).
The US is a signatory to the HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention). All states must comply with the International Child Abduction Remedies Act (ICARA), 42 U.S.C. section 11601 et seq, which codifies federal law as it relates to the Hague Child Abduction Convention. Issues of international abduction or wrongful retention must be presented to the Central Authority, US Department of State, Office of Children Issues. The National Center for Missing and Exploited Children (NCMEC) also provides assistance and support.
A party seeking the return of a child can bring a claim in either a federal or state court (ICARA, 22 U.S.C. section 9003(a) and (b)). However, federal courts only address the merits of the abduction or a wrongful retention claim. Underlying child custody matters such as rights of access must be raised in state courts. The country of the child's habitual residence has priority over custody decisions, and a competing state custody decision is not by itself a valid basis to refuse to return the child to the country of habitual residence (Hague Child Abduction Convention) (Miller v Miller, 240 F.3d 392 (4th Cir. 2001)).
A party seeking the return of a child must show by a preponderance of the evidence that the child has been wrongfully removed or retained within the meaning of the Hague Child Abduction Convention (ICARA, 22 U.S.C. section 9003(e)(1)). A court will find removal to be wrongful where all of the following apply (Bader v Kramer, 484 F.3d 666, 668 (4th Circuit 2007)):
The child was a habitual resident of the petitioner's country on removal.
The removal violated the custody rights of the petitioner under the laws of his country.
At the time of removal, the petitioner had been exercising his custody rights.
Habitual residence is not defined in the Hague Child Abduction Convention nor by ICARA. However, the Fourth Circuit (which includes Virginia federal courts) uses a two-part analysis to determine habitual residence (Maxwell v Maxwell, 588 F.3d 245 (4th Cir. 2009) (internal citations omitted):
Whether the parents shared a settled intention to abandon the former country of residence (regardless of whether the intention was present on departure or formed after departure).
Whether there was an actual change in geography coupled with the passage of an appreciable period of time, one sufficient for the children to acclimatise to the new environment.
Therefore, the court will not order the return of the child back to the country of prior residency if the court finds both:
The intent to change habitual residence to Virginia.
That the child has acclimatised to Virginia.
If a petitioner proves wrongful removal, Virginia will order the return of a child unless there is either (Bader, 484 F.3d at 668-669. See also ICARA, section 9003(e)(2) (A), (B)):
A grave risk of physical or psychological harm.
Violations of fundamental human rights or freedoms.
One year or more delay by the petitioner in seeking the return of the child.
Consent or acquiescence.
A custodial right not being exercised when the child was removed.
Virginia courts also consult the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (section 20-146.1 et seq, Virginia Code). Virginia can assert jurisdiction over custody matters if Virginia has been the child's home state or was the home state within six months of the proceedings (UCCJEA). The concept of home state is similar to the Hague Child Abduction Convention's reference to habitual residence. Where the child was in Virginia for more than six months due to wrongful retention, Virginia will probably not recognise Virginia as the child's home state under the UCCJEA (Moscona v Shenhar, 50 Va. App. 238 (2007)).
The UCCJEA was enacted to deter child abductions between states or countries where one party may have obtained an unfavourable award in one jurisdiction and is seeking a more favourable award from a court in another jurisdiction (Johnson v Johnson, 26 Va. App. 135 (1997)).
Leave to remove/applications to take a child out of the jurisdiction
Requests to relocate
Virginia courts analyse requests to relocate (move or otherwise take the child out of the local jurisdiction) in the same manner as custody and visitation matters (Petry v Petry, 41 Va.App. 782 (2003)). Any order for custody or visitation must require that each of the parties provide 30 days' advance written notice to the court and to the other party of any intent to relocate (section 20-124.5, Virginia Code). If the other parent objects to relocation, he or she can file a motion to enjoin the child's relocation pending a full custody and relocation trial (see below, Removal against wishes of other parent).
Removal against wishes of other parent
The issue of relocation is not governed by any Virginia statute. There is no restriction on the ability of either parent to apply to remove the child from the jurisdiction against the wishes of the other parent. Often the custodial parent will inform the other parent of their intent to relocate. To stop the relocation, the non-custodial parent files a Motion to Enjoin Relocation, which many courts will hear on an expedited basis. Assuming the relocation matter is not the initial custody determination, the party seeking to relocate must prove (Wheeler v Wheeler, 42 Va. App. 282, 288 (2004)):
A material change in circumstances has occurred since custody was previously adjudicated (Wheeler 42 Va. App. at 289; Hiner v Hadeed, 15 Va. App. 575, 570-80 (1993)).
That relocation is in the child's best interest (as opposed to simply being what the parent wants or in the parent's best interest).
Factors the court will consider include the:
Economic outlook in Virginia versus the new location (Scinaldi v Scinaldi, 2 Va. App. 571, 574 (1986)).
Presence of extended family members in each location (Simmons v Simmons, 1 Va. App. 358, 360 (1986)).
Child's social and educational development in Virginia.
The court will also scrutinise the relationship between the non-custodial parent and child to determine whether the relationship can be substantially maintained post-relocation.
Surrogacy and adoption
Sections 20-156 to 20-165 of the Virginia Code govern surrogacy agreements. A surrogacy contract in Virginia is defined as an agreement between the intended parents and a surrogate, in which the surrogate agrees to do all of the following (section 20-156, Virginia Code):
Be impregnated through the use of assisted conception.
Carry any resulting fetus.
Relinquish to the intended parents the custody of and parental rights to any resulting child.
Surrogacy contracts in Virginia are permissible. There is a distinction between who will be considered the resulting child's parents, depending on whether or not the court approves the surrogacy agreement. If the court approves the agreement, then the intended parents are deemed to be the parents of any resulting child. Generally, if the court does not approve the agreement, then the gestational mother may be deemed the child's parent. The intended parents would then need to adopt the child to obtain parental rights.
An order approving a surrogacy agreement is only valid for 12 months. Agreements must contain provisions to guarantee the payment of reasonable medical and ancillary costs for the surrogate. Agreements for the payment of compensation to the surrogate are void and unenforceable. A surrogate must have had at least one pregnancy and experienced at least one live birth. All parties must undergo physical and psychological evaluations. In addition, there are other requirements that must be satisfied for court approval (section 20-160, Virginia Code).
The laws related to adoptions in Virginia are complicated and include a number of different types of adoption. Most of the law related to adoptions can be found in sections 63.2-1200 to 63.2-1253, Chapter 12 of the Virginia Code. These provisions deal with the recognition of foreign adoptions, agency adoptions, parental placement adoptions, step-parent adoptions, close relative adoptions and adult adoptions.
Virginia law does not prohibit an unmarried individual from adopting a child, however invasive investigations and home studies will be required.
The Virginia Code does not specifically differentiate unmarried individuals on the basis of sexual orientation. However, until 2014, it was unclear whether a homosexual individual or an individual involved in a same-sex relationship would be prohibited from adopting a child based on lifestyle or morality issues. No case law addressed this issue directly. However, in Doe v Doe, 222 Va. 736 (1981), the Supreme Court of Virginia reversed a stepmother's adoption petition that relied solely on the father and stepmother's argument that the mother should not have parental rights because she was a lesbian. The court did not make a determination as to whether or not the fact that the mother was a lesbian rendered her unfit. However, the court did say that:
"If Jane Doe is an unfit parent, it is solely her lesbian relationship which renders her unfit, and this must be to such an extent as to make the continuance of the parent-child relationship heretofore existing between her and her son detrimental to the child' s welfare." (Id. at 746, 284 S.E.2d at 805).
The case of Davenport v Little-Bowser, 269 Va. 546 (2005) also provided some support for same-sex adoptive parents. In that case, same-sex adoptive parents and their children filed a complaint against the Registrar of Vital Records for refusing to issue new birth certificates listing both adoptive parents on the children's birth certificates. Their children were adopted under out-of-state adoption orders. At the trial court level, the court held that birth certificates can only list the name of a mother and of a father. In addition, the court held it could not recognise a status (same-sex relationship) that public policy does not allow. Although the Supreme Court ruled in favour of the adoptive parents, it also made clear that this case was not about same-sex relationships.
While Virginia law historically did not recognise same-sex marriage, 2014 ushered in a major shift in the rights of same-sex couples in Virginia. In the case of Bostic v Schaefer, 760 F.3d 2014, the Fourth Circuit Court of Appeals, which includes Virginia, ruled not only that same-sex couples had standing to challenge the constitutionality of Virginia's statutes prohibiting same-sex marriage, but it affirmed the lower court's ruling that such laws were in fact unconstitutional. As a result, Virginia's same-sex couples became free to marry on 28 July 2014. The US Supreme Court then denied a writ of certiorari on the case letting the lower court's decision stand. This ruling means that now same-sex couples and homosexual individuals may adopt in Virginia and one's sexual orientation may not be used to prevent adoptions as it may have before. As a result, there is now a move away from terminology such as "Mother" and "Father" in favour of the neutral term "Parent".
Family dispute resolution
Mediation, collaborative law and arbitration
Virginia permits mediation, collaboration and arbitration.
Mediation is frequently used. Mediation is a process in which a mediator (§ 8.01-581.21, Virginia Code Ann):
Facilitates communication between the parties.
Without deciding the issues or imposing a solution on the parties, enables them to understand and to reach a mutually agreeable resolution to their dispute
Collaborative law is defined by the International Academy of Collaborative Professionals (IACP) as a voluntary dispute resolution process in which parties settle without resort to litigation.
If collaboration fails, neither party can litigate using their collaborative attorneys or other professionals who assisted them with the collaborative process.
Arbitration is very similar to litigation, although the parties jointly engage an arbitrator (often a lawyer or retired judge) to decide the matter. Similarly to litigation, both parties present evidence, call witnesses, and the lawyers make opening and closing statements, and so on. A significant difference between arbitration and litigation is that, in arbitration, many of the rules of evidence governing litigation do not apply. Another significant difference between arbitration and litigation is that, generally, arbitration awards cannot be appealed, challenged, or vacated except in very specific circumstances.
The parties are not required by law to attempt a family dispute resolution in advance of the institution of proceedings. The statutory authority for mediation is Virginia Code §§ 8.01-581.21 to 8.01-581.26. The courts treat a mediated agreement as they would treat any other settlement agreement (§ 8.01-581.25, Virginia Code Ann).
Vacating mediation orders or agreements is difficult.
The Uniform Arbitration Act governs the arbitration process, including submission of controversy, agreement to arbitrate, conditions precedent to action (§ 8.01-577 et seq, Virginia Code).
Virginia Code § 8.01-577 permits parties to arbitrate their disagreement as opposed to going to court to litigate over their disagreement. Once the parties have formally agreed to arbitrate and have agreed that the arbitration will be submitted and entered into a court record, they cannot later change their minds and refuse to arbitrate (unless they are able to prove grounds which would be sufficient to revoke or annul other types of binding agreements).
Further, it is very difficult to vacate an arbitration award. Virginia Code § 8.01-581.010 details the various ways an arbitration award may be vacated. Virginia Code 8.01-581.11 governs modification or correction of an arbitration award.
Finally, a court can order the arbitrator to modify or correct the arbitration award for the purpose of clarifying the award (§8.01-581.11(1) and (3), Virginia Code).
Collaborative law is a process that provides individuals with an opportunity to resolve disagreements without the threat of litigation. This is a voluntary process, initiated when adversarial parties sign a contract binding each other to the process and disqualifying their respective attorneys from representing them in future litigation. This process is gaining popularity in Virginia; however, there is no statutory basis for collaborative law in the area of domestic relations (§ 8.01-581.26, Virginia Code Ann).
Civil partnership/same-sex marriage
Status of civil partnership/same-sex marriage
2014 ushered in an unprecedented recognition of rights for same-sex couples in Virginia (see Question 22). While constitutional prohibitions prevented the marriage of same-sex couples and while Virginia public policy looked unfavourably on same-sex relationships, all of that changed in 2014. Bostic v Schaefer, 760 F.3d 2014, the Fourth Circuit Court of Appeals, ruled that same-sex couples had standing to challenge the constitutionality of Virginia's statutes prohibiting same-sex marriage and that such laws were in fact unconstitutional. As a result, on 28 July 2014 Virginia's same-sex couples became free to marry. However, the constitutionality of same-sex marriage now sits before the US Supreme Court as the case of Obergefell v Hodges (and other linked cases) prepares for oral argument, now scheduled for 28 April 2015. These cases may very well finally settle the issue of same-sex marriage on a federal level.
As the law with respect to same-sex marriage evolves, the courts and litigants will face uncertainty in the interpretation of existing laws. For example, with respect to the division of property, will separate property be defined as property that existed as of the date of a marriage in Virginia, or, if the couple was married in another state before it was legal in Virginia, will that date of marriage apply?
Additionally, questions arise on the recognition of civil unions valid in the state of union but not in Virginia. If a civil union couple later marries in Virginia, will Virginia recognise the legality of their marriage as of the civil union date or the date of marriage in Virginia? The date of marriage and length of marriage have significant impact on the classification of property as well as the entitlement to and duration of spousal support. As these issues begin to emerge, the law in this area is anything but settled.
The US has enacted a federal law, the Defense of Marriage Act (DOMA, 28 U.S.C. 1738C), which allows states to independently decide whether to recognise civil unions/same-sex marriage. This federal law voids the Full Faith and Credit Clause of the US Constitution with respect to recognition of same-sex relationships legally entered into in other jurisdictions. Individual states are not required to recognise these unions or any rights or claims arising from these relationships (including contractual rights, inheritance rights and rights to be considered family for the purposes of making end of life medical decisions). On 26 June 2013, the US Supreme Court ruled that part of DOMA is an unconstitutional violation of the Equal Protection Clause of the US Constitution. The impact is that the federal government can no longer define marriage as only existing between opposite-sex couples and cannot limit federal benefits to opposite-sex couples. However, the decision does not require individual states to recognise same-sex marriage. As of 23 March 2015, same-sex marriage is only legal in 37 states and the District of Columbia.
The Supreme Court's recent ruling may help pave the way for challenges to the constitutionality of the Virginia laws and the laws of other states which prohibit same-sex unions.
Controversial areas and reform
The biggest area of the law undergoing major change is with respect to same-sex marriage (see Question 26).
Another area of controversy is what happens when a now deceased employee fails to change his beneficiary designations for his retirement account or life insurance policy, and his ex-wife is still listed as the beneficiary. The plan administrator then pays the benefits in favour of the ex-wife rather than the current wife, despite the ex-wife's explicit waiver of the benefits in the order of divorce. This is a controversial issue and essentially involves the pre-emption of state law by federal law.
The US Supreme Court heard the case of Hillman v Maretta on 22 April 2013. On 3 June 2013, the court decided that federal law continues to pre-empt Virginia law, specifically section 20-111.1(D) of the Virginia Code. The US Supreme Court held that section 20-111.1(D) of the Virginia Code is pre-empted by federal law and therefore the former wife is not liable to the current wife for the life insurance proceeds she received.
Other areas of Virginia law that appear most out-of-step:
The lack of a family court.
Emphasis on the role of fault in granting divorces, denying spousal support and division of assets.
Failure to allow the court to draw an adverse inference against a party refusing to answer questions regarding adultery.
Recent case law reinforces another area of significant controversy, which is that an obligor spouse may pay spousal support or child support from marital assets rather than through income (see Wright v Wright, 61 Va. App. 432 (2013)). Following the logic of Wright, an obligor spouse can amass significant savings through his or her income while depleting marital assets to pay support.
Virginia General Assembly Legislative System
Description. Citations to the Virginia Code can be found here (type "Virginia Code" followed by the relevant code section in the Search box). The state of Virginia maintains this website and it provides information relating to Virginia laws.
Virginia's Judicial System
Description. The Virginia Court of Appeals and Virginia Supreme Court cases can be searched here (the site maintains published opinions from 1995 to present and unpublished opinions from 2002 to present). The State of Virginia maintains this website.
Katharine W Maddox, Partner
Maddox and Gerock, P.C.
Professional qualifications. Juris Doctor, Virginia licence, 2001
Areas of practice. Divorce; high asset divorce; child custody; child relocation; child abduction; spousal support; child support; equitable distribution (property division); separation and settlement agreements; premarital agreements; division of retirement.
- Assisting in obtaining the return of children who were wrongfully retained in Mexico through Hague Convention proceedings.
- Negotiating settlement of business and high asset division between parties in the Middle East and Virginia.
Professional associations/memberships. International Academy of Matrimonial Lawyers; Virginia Trial Lawyers Association; Virginia State Bar Association; Virginia Women Attorneys Association; American Bar Association; Fairfax Bar Association.
- "Relocation in Custody Cases: A History and the Present State of the Law", Journal of the Virginia Trial Lawyers Association, Summer 2004, authored and published under prior name of Katharine McGregor.
- Family Law: Jurisdictional Comparisons, Virginia chapter in the European Lawyer Reference Series, edited by James Stewart of Penningtons Manches LLP (a law firm located in London, England), co-authored with Ms Gerock.
Julie C Gerock, Partner
Maddox and Gerock, P.C.
Professional qualifications. Juris Doctor, Boston College Law School, 1998; North Carolina licence 1999; District of Columbia licence 2006; Virginia licence 2006
Areas of practice. Divorce; high asset divorce; child custody; child relocation; child abduction; spousal support; child support; equitable distribution (property division); separation and settlement agreements; premarital agreements; division of retirement.
- Obtained order for child support arrearages for emancipated children who as minor were abducted from the United States and where order for support was more than 20 years old.
- Assisted in return of child wrongfully retained in Costa Rica through Hague Convention and state law proceedings.
Professional associations/memberships. International Academy of Matrimonial Lawyers; Virginia Trial Lawyers Association; Virginia State Bar Association; Virginia Women Attorneys Association; American Bar Association; Fairfax Bar Association.
- Family Law: Jurisdictional Comparisons, Virginia chapter in the European Lawyer Reference Series, edited by James Stewart of Penningtons Manches LLP (a law firm located in London, England), co-authored with Ms Maddox.