I am going to preface this with the knowledge that you aren't lawyers here....
I have a friend who is getting divorced. They had a child BEFORE they got married. In Virginia, it's a one year separation prior to divorce when a minor child is involved.
Right now - she has a lawyer - but hasn't contacted him about this question. So IF the child was NOT a product of the marriage - do they still have to wait one year or can they proceed without the separation?
Any knowledge or experience you have would be greatly appreciated.
Thank you!!
I think the child is still a part of this family no matter how you look at it. I would say they need the year to work through all their issues and work on the fine details of the divorce so that it will go quickly and smoothly in the end.
I am no lawyer (ha ha) and not familiar specifically with VA law. But, I would THINK, that regardless of whether they were married AT THE TIME of the birth of the child, that if they are in fact, the natural parents, and the divorce will be determining any custodial issues with regard to said child, that the one year procedural rule would still apply.
http://www.lawhelp.org/documents/81281divorce.htm
From what I read here (above link), the one year rule applies regardless of whether or not there are children involved. There are other "grounds" for divorce in VA that do not seem to require the one year separation period, however. Adultery being one.
I am NOT a lawyer, however, this question interested me, so I did some research. According to Virginia law, the child is considered "legitimate" if the parents marry after the child is born. Therefore, I believe that the separation and custody issues would be the same as if the child was born during the marriage.
This is definitely a question for a family law attorney.
IMO, since the minor chld is still "involved" I would think the separation requirement would still apply. They will have to establish custody, visitation and support so it is logical that the separation requirement will apply. Of course one thing I've learned about law, it's not always "logical." LOL
Is this a fault or no fault divorce?
I would think that the spirit of the law woudl apply more than the letter of the law. The point of setting it up like that with children, I imagine, is to make sure that the parents are doing all that they can before divorce for the sake of the children. If there is a child involved, whether he/she showed up before or during the marriage, I would think that the law (in spirit) applies. Maybe they know that they are done, but the law does not.
i think as long as the kid is both of theirs then they have to wait the year.
Hi, Cheryl:
No, in Virginia you need to be separated.
After separtion for 6 months, you have
to wait another 6 months before the divorce
is final.
In Virginia, the law is made for couples to have time
to make a decision not to divorce.
I would suggest that you find a mediation center and
get a family mediator to help this couple solve their
problems that way instead of going through attorneys.
Thanks for caring.
D.
