Virginia Divorce Process

How to file a divorce in Virginia


VIRGINIA REQUIREMENTS FOR DIVORCE 

  • At least one spouse must have resided in the Commonwealth of Virginia for at least six continuous months (proof of residency may be required)
  • If there are no children involved, the couple must have been separated for at least six months and there must be a written property settlement agreement prior to filing
  • For couples with children, the couple must have separated for at least 12 months prior to filing
  • You must file for divorce in a Virginia county where you and/or your spouse have resided
  • Virginia recognizes two forms of divorce: Divorce from bed and board, or Divorce from the bond of matrimony.  A divorce from bed and board is a partial divorce which establishes a legal separation, but does not permit remarriage.  A divorce from the bond of matrimony is a full and absolute dissolution of the marriage.

MUST KNOW TIPS!

  • If you would like to file online, MyDivorcePapers.com offers simple divorce package that is only $159.  This streamlined divorce package will guide you through the initial divorce process by asking you questions that a divorce attorney or judge would and providing the necessary forms.
  • Divorce can be a complicated process, so you may wish to get free legal advice from Avvo.com.  This online forum allows to query local lawyers without cost.
  • The divorce process doesn’t have to be a combative one.  The fastest and easiest way to conclude this difficult procedure is to work with your spouse in a constructive and unemotional manner.  Avoid arguments if at all possible!
  • Divorces require proper documentation. It is wise to copy all financial and personal documents so that you can provide them to your attorney and the courts.

 

REASONS FOR DIVORCE

Virginia permits No-fault divorces which meet the following criteria:

  1. Separated and no cohabitation for 6 months
  2. Separated and no cohabitation for 12 months if there are minor children

 

Fault divorces must provide proof of one or more of the following:

  • Felony conviction followed by at least a year of imprisonment
  • Adultery, sodomy or buggery
  • Cruelty (must consist of more than a single act)
  • Desertion for at least one year
  • Voluntary separation—at least six months if no children are involved, and at least one year otherwise [Code of Virginia; Title 20, Section 20-91]

 

STEP ONE: INITIATING THE DIVORCE

The divorce process in Virginia begins with you or your spouse filing a Bill of Complaint for Divorce in a county circuit court. This form notifies the court and the spouse that a divorce is desired.

  • Completely fill out the Bill of Complaint for Divorce and make at least two copies to submit to the county circuit court where you or your spouse resides.
  • You must also fill out a VS-4 State Statistical Form and submit it along with the complaint.
  • A filing fee must also be provided at the time of complaint submission. This fee may range from $150 to $290 and must be in the form of cash, money order or a cashier’s check.
  • Once the Bill of Complaint and supporting documents are filed, a clerk of the circuit court will review the filing and, possibly alert you to any missing documents. If your filing is approved you will receive a civil number designating your case.

STEP TWO: LEGAL NOTICE

As the plaintiff in the divorce case, you must provide legal notice to the defendant, your spouse.  Once you file the complaint, your spouse must be officially served with copies of the complaint by a process server or the court within 21 days.  The defendant, i.e. your spouse, will have 21 days to file an answer to the complaint with the court.

You may serve your spouse in a number of ways:

  • Sheriff’s department—in state
  • Sheriff’s department—out of state: if your spouse resides outside of Virginia you may be responsible for contacting the Sheriff’s department which has jurisdiction over your spouse.
  • Process server
  • Order of publication—if you cannot find or serve your spouse using other methods, the court may order that notice is published in the newspaper.

Waiver of Notice

  • If your spouse does not wish to contest the Bill of Complaint, then they may file a Waiver of Notice.
  • A Waiver of Notice relinquishes any rights or privileges regarding notification of ore tenus hearings, orders and decrees, or the Final Order of Divorce.
  • In effect, a Waiver of Notice signifies that your spouse agrees to the divorce and empowers you to proceed with relative freedom.

Answer

  • If your spouse wishes to contest some or all of the Bill of Complaint, they may file an Answer.
  • An Answer must include a response to each numbered point in the Bill of Complaint.
  • The Answer may include topics regarding child custody, support, paternity and visitation; property distribution; debt allocation; alimony; or fault bases for the divorce, i.e. adultery or cruelty.
  • If your spouse desires to set forth their own grounds for a divorce, they may file an Answer and Cross-Bill. This will detail all of your spouse’s reasons for seeking a divorce.

Important Reminders

  • Upon receipt, a Proof of Service form must be filed with the clerk of the county circuit court
  • If the defendant fails to respond within 21 days, the judge may rule a default and proceed to completion without further consideration of the defendant’s desires.
  • If there is a risk that a party may harm their spouse or children, run off, or abscond with funds, then a Pendente Lite hearing may be ordered. At this hearing, the judge may issue an injunction or protective order if there is strong evidence to support these risks.
  • If the defendant does not wish to contest the divorce, the entire proceeding may be completed within two to three months.

STEP THREE: CONTESTED AND UNCONTESTED DIVORCES

If your spouse has submitted a Waiver of Notice, an Answer which does not contest the Bill of Complaint, or failed to respond within 21 days, you may proceed with an uncontested divorce. In Virginia, there is no requirement for an actual court hearing, but in some cases, an ore tenus hearing may be scheduled.

  • At an ore tenus hearing, you must present the proposed Final Decree of Divorce form and the VS-4 form.  You must also present the separation agreement if you and your spouse signed one.
  • A witness must also be present at the ore tenus hearing who can corroborate the facts of the case.
  • If all the documentation is approved, the judge will sign the Final Decree of Divorce, finalizing the divorce process.

If your spouse, however, files a Cross-Bill or denies some of the proposals within the divorce decree, e.g. child custody or alimony, then you must proceed with a contested divorce.

  • A Pendente Lite hearing is typically scheduled at the beginning of a contested divorce. This hearing usually determines the financial support that will be provided to a spouse during the course of the divorce, as well as any other short term rights.
  • Once a Bill of Complaint and an Answer have been filed, the court will schedule a conference. At the conference, the court will set the date for the final hearing, thereby notifying both parties as to the deadline for property and other agreements.
  • A discovery process will be allowed, where both parties will investigate the truth of allegations.
  • During discovery attorneys will usually use interrogatories to elicit information from spouses and witnesses.
  • A trial follows discovery.  Both parties present their arguments to the court which is capped by a ruling from the judge.
  • After the ruling, attorneys for both parties must hammer out a final decree and present it to the judge to sign.

STEP FOUR: CHOOSING THE RIGHT REPRESENTATION

Representing Yourself (Lowest Cost)

Divorce is a complex process, but if you are confident that you can understand the legal terms, Latin and navigate the administrative process, you may wish to oversee the divorce yourself. While thousands of people in Virginia do complete the divorce process without the services of a qualified attorney each year, in the vast majority of these cases, these are straightforward, uncontested divorces. To assist you in this process, MyDivorcePapers.com offers a Do-It-Yourself divorce guide with forms and a step by step tutorial.  With this guide from MyDivorcePapers.com you can be confident that you will complete the divorce process with minimal cost and difficulty.

Mediation (Mid-range Cost)

Many courts in Virginia strongly encourage divorcing couples to seek third party mediation.  A divorce mediator is a neutral party who attempts to reconcile you and your spouse so that a divorce becomes unnecessary.  If this remains impossible, then a mediator may attempt to broker a settlement regarding the major issues. The key advantage of mediation is that it may limit the costs involved.  Mediators typically charge less than attorneys and can often prevent any need to proceed to marriage dissolution.  When a divorce is inevitable, a mediated settlement can eliminate the need for attorneys and facilitate an uncontested divorce.

Legal Representation (Highest Cost)

If you and your spouse are unable to resolve your differences and a court trial becomes necessary, you are strongly advised to hire a divorce attorney. An attorney will possess the expertise required to negotiate with opposing counsel, judges and other key parties.  They will also have knowledge of how to make motions, file petitions and conduct discovery investigations.

  • It is likely your spouse will hire an attorney to represent their interests
  • Attorneys provide the greatest chance for a favorable outcome
  • An attorney can devote their full time to managing the months long case

STEP FIVE: AGREEMENTS ABOUT MAJOR ISSUES

The most common issues that fuel conflicts during a divorce are property distribution, alimony and child custody/support.  If you wish to proceed with a divorce, it is wise to discuss these issues beforehand with your spouse.  If the two of you can agree on how to resolve these issues, you may be able to avoid a lengthy, difficult and expensive divorce.  Even if you are unable to come to an agreement, you may still gain important insights into your spouse’s mind.

Marital and Separate Property

Virginia’s property division laws are based on “equitable distribution,” which provides fair distribution of all valuable items and property based on contributions by each party. This distribution only applies to marital property; property that was acquired before or after the marriage, or through personal gifts or inheritance are considered separate and not usually subject to distribution. Marital property is distributed using the following method:

  • The court determines a Fair Market Value for property. If you and your spouse cannot agree on a value, the judge may issue a FMV for the item.
  • Distribution of property is determined by each spouse’s contributions (both material and immaterial).
  • The court will try to split property according to each spouse’s interest.  If the property is indivisible, then the court may award the property to one party in return for appropriate financial compensation for the other spouse.
  • Any debts that have been incurred during the marriage are also distributed equitably, according who incurred them and who is primarily responsible for them.

Child Custody and Support

Any minor children who resulted from the marriage must be properly provided for.  If you and your spouse cannot agree who should possess custody of the children and how much financial support will be provided to the custodial parent, then the court will step in and make a determination.

  • If you and your spouse have come to an agreement, then you can draft a Stipulation and Consent Order which details custody and support.   A judge will review and sign the order if acceptable.
  • You and your spouse may agree to Sole, Split or Joint Custody.
    • Sole custody provides full legal and physical responsibility for the children
    • Split custody grants custody of one child to each parent where there are two or more children.
    • Joint custody grants shared custody of one or more children, with children spending time in the care of both parents according to an agreed schedule.
    • The judge will determine how much financial support the non-primary custodian must provide by taking into consideration the best interests of the children.  This is typically in the form of periodic payments but may also include a lump sum payment.

Alimony (Spousal Support)

There are many factors that a judge may consider when determining how much spousal support a party must provide to the other.  These include

  • Length of marriage
  • Standard of living while married
  • Financial resources, income and obligations of you and your spouse
  • Age
  • Health
  • Agreements made prior to or during the marriage regarding spousal support
  • Educational and professional capacity to earn a living

Virginia does not utilize a set formula for determining the amount of alimony, and a judge has broad discretion in determining the amount.

STEP SIX: FINAL DECREE OF DIVORCE

In an uncontested divorce, a judge may sign the Final Decree of Divorce at the ore tense hearing.  At the hearing, you must have a witness attest to the accuracy of the points in the Final Decree.  If you do not desire a hearing, you may merely file a deposition corroborating the facts of the case.

In most cases, that will finalize the divorce proceeding, but other parties have the right to appeal the decision. In a contested divorce, both parties must attend a court trial.  This can last between one and five days. The judge will usually take several weeks to review the case before handing down a ruling. Your attorney or your spouse’s attorney will then produce a written order which encapsulates the judge’s ruling. If both parties agree to the order, then the judge will sign it, finalizing the divorce.

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