Every marriage and thus every divorce is unique. Each is handled differently.
However, there are some basic principles governing divorce in Virginia that apply to all cases that may be helpful for you to know.
Virginia law requires that at least one of the spouses to have lived in the state for at least six continuous months in order to file for divorce in a Virginia court.
If the residency requirement is satisfied, then there are a number of different paths to obtaining a divorce in Virginia.
TYPES OF DIVORCES
Under Virginia law, there are two grounds or bases for obtaining a divorce, no-fault and fault based.
In a “no-fault” divorce, one or both of the spouses have decided they want to end the marriage, have lived separate and apart for the necessary amount of time, and neither wants (or can) assert “fault” grounds (discussed below) against the other.
For a no-fault divorce, the couple must only show that they have lived physically separate and apart for the required period of time.
If a couple has no minor children, and if the couple has signed a written separation agreement resolving all issues (discussed more fully below), then a six-month separation is required in order to obtain a no-fault divorce.
If, however, a couple has minor children (or they do not have a signed written separation agreement), then the spouses must live physically separated for at least 12 months in order to file for a no-fault divorce.
The law favors marriage and disfavors divorce. The law makes it easy to get married and hard to get divorced. The law does not want divorce to be entered into lightly or without full consideration.
So, the law requires that a party filing for divorce seriously contemplate a decision of divorce, forming the intention to permanently separate and holding that intention to remain separate from their spouse, and actually “living separate and apart”, for the necessary time period (either 6 or 12 months – see above).
What does “living separate and apart” mean? Well, it certainly means living in two separate residences. But it also could mean living separately in the same house.
Virginia law allows a divorce based on a separation “under the same roof,” but these are not common and certain requirements must be first met. If you are considering separation in the same house, be sure to discuss this in full with your attorney. You may or may not be able to get a divorce this way, depending on the facts of your case.
In a fault-based divorce, while a physical separation is still required in order to get a “final” divorce allowing remarriage, filing a divorce based on fault grounds before you’ve been separated a year may be necessary depending on the facts of your case.
For example, one spouse may have deserted the other and left the remaining spouse without any money. In that case, you may consider filing a case for “desertion” against the spouse that left. While the court could not yet divorce you (assuming you’ve not been separated a year), the court could enter temporary orders for your financial support while you wait for the year to pass. The same court could enter temporary rulings for custody and visitation of children. Filing a fault-based divorce case will also allow you to use the power of the court to investigate and discover information about your spouse and his or her assets and income.
When filing a fault-based divorce, the filing party must have evidence of a specific legal basis or “grounds” to file for divorce, the most common of which are adultery, desertion or cruelty by one of the spouses.
In a fault-based divorce, the spouse who files for divorce must include in their initial filing (the “Complaint”) a specific list of the conduct by the other spouse that gives rise to the fault grounds for a divorce.
For example, in a fault-based divorce on adultery grounds, the filing spouse must include the specific details surrounding the adultery, including the name of the paramour, as well as the dates, times, and locations of the adulterous conduct. (Note that a case for adultery does not require a period of separation before the court could enter a final decree of divorce.)
CAN I “FILE” FOR “LEGAL SEPARATION” IN VIRGINIA?
No – you don’t “file” for “legal separation” in Virginia.
If you are married and living separate and apart from your spouse, where at least one of you has formed the intention to permanently separate, you are “separated” under Virginia law. There is nothing to file and nothing you have to sign to show you are “separated.”
Now, you may very well want to sign a written agreement with your spouse (after consultation with an attorney – don’t sign one you draft yourself) before you separate or even if you have already separated. By doing so, you protect yourself against your spouse making a claim of “desertion” against you. If the separation is by agreement, then you are not deserting him or her.
UNCONTESTED VERSUS CONTESTED DIVORCE
Where the spouses can reach an agreement on their own as to the terms of their divorce, their agreement will be set forth in a written separation agreement (see “Separation Agreements” below).
This document will describe the majority of what will happen in terms of property division, support, and custody/support of minor children.
Then, once the required period of separation has passed, the only thing that remains is to ask the court to divorce you.
Under those circumstances, you normally would not have to appear in court–this is often done through the mail using affidavits.
In the event, however, that the spouses cannot agree on some or all of these terms, the case will become a contested divorce, and a judge will make decisions on any contested issues after a trial.
Disentangling the details of a marriage and shared life can be complicated, and there are many issues to be addressed.
However, it does not have to be contentious.
If the spouses can agree on how to divide their property, and how issues of support and custody/visitation will be handled, all of these decisions will be detailed in a written separation agreement, to be signed by both spouses, and the divorce can be finalized without having to appear in court, as described above.
Typically, a separation agreement will address the following:
- Real Estate. The agreement should clearly state the status of any real estate owned during the marriage–who will own it going forward, who will occupy it, or whether it will be sold and how the proceeds will be divided; as well as how bills related to ongoing ownership (utilities, maintenance) will be paid/allocated between the spouses if not sold.
- Personal Property. The agreement should describe in detail how any personal property and financial assets (including savings accounts, retirement accounts, and any property obtained through inheritance or gift) will be divided, or how the proceeds will be divided if any property is sold. It should also include who will maintain control of or access to bank accounts or if joint accounts will be closed.
- Debts. The agreement should identify who will be responsible for paying any debts accumulated during the marriage, including mortgages, car loans, credit cards and student loans.
- Spousal Support/Alimony. After a consideration of many factors, (for example, the length of the marriage, the standard of living established during the marriage, any disparity in income between the parties, etc.) the agreement may contain a provision for spousal support/alimony, including how much will be paid, for how long, and any future circumstances under which that support will change or terminate.
- Children. The agreement should describe in detail any arrangements related to children, including physical custody, legal custody, and visitation (or parenting time); as well as any financial obligations related to the children, such as child support, health insurance, medical expenses not covered by insurance, and payment of child care. The agreement can also contain provisions about the payment of private school tuition, college tuition, visitation travel costs, and extra-curricular activities.
- Enforcement. The agreement may include specific terms as to the remedy or consequences should one of the parties breach the agreement, often the payment of the prevailing spouse’s attorney fees in the event of a breach of the agreement. The agreement can also form the basis of a future court order entered as part of the divorce which would then be enforced using the court’s contempt powers.
Entering into a voluntary, written separation agreement can reduce friction between the parties going forward, save a significant amount of time, and ensure some level of predictability for divorcing spouses and their children.
Moreover, once signed and notarized by both parties, the agreement constitutes a legally enforceable contract.
While not required, it would be advisable for each spouse to have their own attorney to at least review the agreement prior to signing, if they don’t already each have attorneys who assisted in the negotiation and drafting of the agreement, in order to protect his or her own separate interests.
CONTESTED DIVORCE: DO I ABSOLUTELY HAVE TO GO TO COURT?
When there are disputed issues in a divorce that the parties cannot resolve on their own or with the aid of their attorneys through traditional negotiation, typically those issues are decided in court by a judge.
However, there are two alternative processes for resolving those disputes that take place outside of a courtroom – mediation and collaborative divorce – which may be helpful in resolving disagreements.
Both mediation and collaborative divorce can result in a faster, less costly divorce process as compared to contested litigation.
Mediation is a process in which a neutral third-party mediator guides a couple through a resolution of any disputed issues and helps them reach their own agreement. The mediator is not a judge and has no power to decide the outcome. The outcome is decided by the parties, but the mediator helps facilitate their conversation which hopefully leads to an agreement.
The mediator is often an attorney (but does not have to be) and may or may not be “certified” in Virginia.
Sometimes retired judges serve as mediators.
Each spouse may (but is not required to) bring his or her own attorney to the mediation sessions to help protect his or her individual interests during the mediation process or may simply consult with their attorney between mediation sessions.
There is no requirement that the parties reach agreement at the end of the mediation. It is a completely voluntary process.
However, if the mediation is successful at resolving all of the couple’s contested issues, it will result in a settlement agreement, which then converts the case from a contested to an uncontested divorce.
If you haven’t hired a lawyer during the mediation process, you should have an attorney at least review the written agreement reached in mediation before you sign it.
A collaborative divorce is similar to one involving mediation, but there is no third-party mediator involved. Instead, each spouse brings his or her own attorney, trained in the collaborative law process, to a series of meetings in which they work out the terms of their divorce together.
The spouses rely on the advice of their own attorneys, as well as other professionals or experts making up your “collaborative team”, in coming up with an agreed-upon divorce settlement.
Couples choosing to take part in a collaborative divorce process sign a Collaborative Participation Agreement that states if the collaborative process breaks down, the parties are prohibited from using their collaborative attorneys and any team members in any future court proceedings. The collaborative attorneys are only retained for the collaborative process and therefore are entirely focused on settlement rather than litigation.
WHAT IF WE CAN’T AGREE: STEPS INVOLVED IN A CONTESTED DIVORCE IN VIRGINIA
If a couple simply cannot reach agreement on some or all of the issues involved, then one of the spouses may choose to file a contested divorce case in court.
Filing a Complaint
The first step in filing for a contested divorce in Virginia is to file a document called a Complaint, which states the grounds for your divorce; in the case of a fault-based divorce, this must include a specific list of conduct by the other spouse supporting the claim.
The Complaint must then be properly and legally served on the other spouse.
Filing an Answer
After being served with the Complaint, the other spouse has 21 days to file a response, normally an Answer, in which they admit or deny the conduct or other facts alleged in the Complaint.
Other responsive pleadings can also be filed. Along with the Answer, the other spouse may also assert his or her own claims against the original filing spouse–for example, detailing their own separate grounds for divorce, or their own request for custody of any minor children. This document is called a Counterclaim.
Each party may file requests with the court to determine preliminary matters, such as to order the other spouse to provide them with evidence needed to prove their case (called “Discovery”), or to issue a temporary order concerning issues that require immediate attention.
These may include how to handle spousal support/alimony, child support and/or custody, payment of jointly incurred debts, use of the marital residence, payment of the mortgage, etc., while the divorce proceeding is pending.
Discovery is the method by which the parties gather facts and evidence relevant to proving their claims in a trial.
Methods of discovery can include written questions which must be answered in writing, under oath; the sharing of documents, which can include emails, account statements, and any other documents that may be relevant to the contested issues; and live, in-person interviews of a witness or party called depositions, which are conducted under oath and in front of a court reporter.
The attorney may also issue subpoenas, which require an individual or business to produce documents.
Each party may use the discovery process to identify, depose, and summons to appear at trial expert witnesses, who can testify about both medical and financial matters (such as the valuation of property or the earning potential of a spouse), as may be relevant.
A pre-trial conference may be held to assess the status of the case and set a litigation schedule.
In some cases, as a result of information or evidence obtained during discovery, the parties may be able to resolve any contested issues at the pre-trial conference, resulting in a settlement of the case (or a particular issue) rather than requiring resolution at trial.
After the discovery process is complete, the court will set a trial date at the request of either party.
This is typically set several months after the request, depending on the court and the amount of time necessary to hear the case, which gives each party time to prepare their trial strategy based on the evidence they have gathered.
The trial will typically last anywhere from a few hours to all day (and in some rare cases, more than one day) during which evidence and witnesses will be presented to the court, opening and closing statements will be made by each side, and the judge will review and consider the evidence presented.
The Judge may make his or her rulings “from the bench” at the end of the trial or he or she may issue a written decision in the form of a letter to the attorneys after the hearing.