Virginia Family Law

The following sections are included because it may often be the case that a victim of an online privacy invasion has recently divorced the perpetrator spouse, or is considering a divorce or possibly a separation. Although evidence of misconduct is not appropriate in a divorce proceeding, the publication of sexual photos/videos may well be considered in child custody proceedings, and considerations of domestic violence are appropriate when determining spousal support.

  1. Divorce

    1. Introduction

      In Virginia, divorce may be obtained where one party has been guilty of cruelty, caused reasonable apprehension of bodily hurt, or willfully deserted or abandoned the other. In such a case, the innocent party may obtain divorce after one year.1 A party may obtain a divorce if and when the husband and wife have lived separate and apart without any cohabitation and without interruption for one year, or six months where the parties have entered into a separation agreement and have no minor children.2

    2. Text of Statute(s)

      Va. Code Ann. § 20-91 − Grounds for divorce from bond of matrimony; contents of decree.

      Va. Code Ann. § 20-89.1 − Grounds for divorce from bond of matrimony; contents of decree.

      Va. Code Ann. § 20-97 − Domicile and residential requirements for suits for annulment, affirmance, or divorce.

    3. Practice Pointers

      Virginia law requires parties in a divorce to file a Complaint for Divorce that alleges specific grounds upon which divorce may be granted under Section 20-9,3 along with other forms, including a completed VS-4 Form and a completed Domestic Case Coversheet. Some of these forms are available online.4

    1. Va. Code Ann. § 20-91(A)(6).  

    2. Va. Code Ann. § 20-91(A)(9)(a).  

    3. For an example of a Complaint for Divorce in Virginia, you may consult the following resource on pro se divorce suits prepared by the Clerk of Fairfax County Circuit Court, http://www.fairfaxcounty. gov/courts/circuit/pdf/fba-h-53.pdf at 1−4 (last updated December 2015).  

    4. Virginia’s Judicial System, Forms, http://www.courts.state.va.us/forms/home.html. 

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  2. Child Custody

    1. Introduction

      Virginia courts consider ten factors when deciding the best interests of a child for determining child custody and visitation.1 If the victim of the nonconsensual online publication of intimate photos is involved in a child custody dispute, he or she may use evidence of this type of misconduct to establish abuse by his or her former spouse or lover, though Virginia’s operative definition of abuse is somewhat narrow.2

    2. Text of Statute(s)

      Va. Code Ann. § 20-124.3 − Best interests of the child; visitation.

      Va. Code Ann. § 16.1-228 − Definitions.

      Va. Code Ann. § 20-109.1 − Affirmation, ratification and incorporation by reference in decree of agreement between parties.

      Va. Code Ann. § 20-146.5 − Effect of child custody determination.

    3. Cases

      1. Gust v. Gust, No. 0024-16-2, 2016 WL 2636612 (Va. Ct. App. May 10, 2016) (per curiam).
        • Procedural Posture: Wife appealed a final decree of divorce, arguing that the trial court erred by (1) finding that the parties’ prenuptial agreement was valid and enforceable; and (2) denying her motion for continuance because she had been unable to review a doctor’s psychological and custody evaluations.
        • Law: Validity of prenuptial agreements; child custody.
        • Facts: Wife filed a complaint for divorce and asked the trial court to determine custody. Husband notified the court of the parties’ prenuptial agreement and submitted a copy to the court. The parties agreed to submit to psychological and custody evaluations.
        • Outcome: Sole custody granted to husband. In addition to a number of concerns about the wife’s parenting skills, the court noted that “[s]he posted inappropriate things online.”3
    4. Practice Pointers

      Several Virginia forms relating to child custody are also available online.4 Virginia provides a general child support guideline worksheet,5 as well as specific child support guideline worksheets for shared and split custody.6

    • 1. Va. Code Ann. § 20-109.1.
    • 2. See Va. Code Ann. § 20-109.1(9); Va. Code Ann. § 16.1-228.
    • 3. Id. at *5.
    • 4. Virginia’s Judicial System, Juvenile and Domestic Relations District Court Forms and Instructions, http://www.courts.state.va.us/forms/district/jdr.html.
    • 5. Child Support Guidelines Worksheet, Form DC-637.
    • 6. Child Support Guidelines Worksheet − Split Custody, Form DC-638; Child Support Guidelines Worksheet − Shared Custody, Form DC-640.
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