Get a Divorce in Virginia

Uncontested separation and no-fault divorce in the Commonwealth of Virginia can be completed in as little as six months with or without the assistance of an attorney. The issues to be solved in your divorce are separation of property and child custody, support, and visitation. Divorce based on legal grounds is more complicated and usually requires legal assistance.

Steps

Considering An Attorney

  1. Search for a good family law attorney. In a divorce, you and your spouse will be a part of a legal proceeding to end your marriage relationship.[1] Family law attorneys deal with divorce cases regularly, so if you are going to hire an attorney, you should hire a reputable one that has handled similar cases in the past. To choose a good family law attorney, consider the following:
    • Find an attorney that can practice law in Virginia.
    • Ask your friends and family for attorney recommendations. Ask them about any experiences they may have had, and ask for the absolute truth.
    • Search the internet for reputable divorce lawyers. Consider using your state bar's website; public websites like LawHelp.org; and online directories like Lawyers.com, LawInfo.com, and FindLaw.com.
    • Check online reviews, which are often written by past clients who have either had positive or negative experiences. These online reviews can be very helpful and honest, so do some internet searches to try and learn about lawyers you are considering.
  2. Make a decision. Once you have researched family law attorneys and have some ideas, narrow down your list and contact your top choices. Ask your top choices for a consultation so you have an opportunity to explain the situation you are in and the services you need. A consultation will also give you an opportunity to determine how you think you would work with the attorney.
    • After you have met with attorneys and researched their background and expertise, you should make a final decision on who you will hire. Choose an attorney that makes you feel comfortable, that seems to know how to handle your case, and who feels confident that they can represent you in an effective manner.
  3. Avoid bad attorneys. While there are many attorneys in the world, not all of them are particularly good. Avoid hiring an attorney who:
    • Solicits you as opposed to the other way around;
    • Pressures you into making a hiring decision quickly;
    • Refuses to tell you about their background and credentials; and
    • Suggests that they handle the case in an unethical manner.
  4. Consider representing yourself. If you do not feel comfortable hiring an attorney, do not have the funds available to do so, or if you and your spouse agree about the divorce, you may want to consider representing yourself throughout the process. While this is certainly possible, if you have the means to hire an attorney, you should strongly consider doing so. An attorney has a unique set of skills that can help you navigate the judicial system and can help you get want you want out of the divorce process. If you end up representing yourself, you can always ask an attorney to review certain documents or give you limited advice.

Preparing for Your Uncontested No-Fault Divorce

  1. Meet the residency requirements. Before you can divorce in Virginia, at least one of the parties has to have lived in the state for at least six full months before filing. In the complaint, you will be swearing, under penalty of perjury that you meet this requirement and may be required to prove it in court. [2]
    • The easiest way to prove your residency in a state is to use your driver's license or state-issued identification card and voter registration. [3]
    • Utility bills or rental receipts showing your address in Virginia can also be used as proof of residency.
    • If you are member of the armed forces and have been stationed outside of Virginia, but resided in Virginia for at least six months before deployment, you can used your prior residency to qualify to divorce in Virginia. [4]
  2. Establish separate addresses. The same documents that can be used to establish residency in the state can also be used to establish separation. Both spouses need a separate address and be prepared to prove it to the court. Living in different sections of the marital residence will not count toward your separation waiting period.
    • The most common grounds for divorce in Virginia is separation, often called a no-fault divorce. The sooner you are no longer living together, the sooner the court can finalize your divorce. If you do not have children under the age of 18, you must be living "separate and apart" for a minimum of six calendar months. [2]
    • If you have minor children, you must be living "separate and apart" for a minimum of one calendar year. [5]
  3. Create a separation agreement. This document can be as simple or complicated as it needs to be depending on the property owned by the couple. If there are no children, the agreement needs to divide the marital property and deal with the marital debt. The legal standard is equitable distribution. This doesn't mean 50/50, it means fair to both parties. [6]
    • Even though you can't formally transfer ownership of property until the divorce is complete, each party should assume responsibility for their own credit cards, vehicles, rent, and mortgages. If one party is going to contribute financially to the other, it should be spelled out in writing.
    • This agreement can be changed in the final divorce. Right now, the agreement is to get you through the separation period.
    • Virginia allows for unbundled legal services, meaning you can hire an attorney to take your notes and draft a separation agreement for both parties to sign. The attorney can only give general legal advice on form and content. He does not represent either party. [7]
  4. Create a temporary child custody agreement. If you have young children, you need to draft an agreement, with the help of an attorney if necessary, saying where your children will live, a schedule for visits and holidays, and payment of temporary support. The state provides an online calculator to estimate child support during the separation period. [8]
    • In the final divorce decree, the legal standard is the best interests of the child. The court expects both parents to contribute to the financial, physical, and emotional support of their children. Establishing a pattern of communication and cooperation during the separation period is likely going to mean less judicial scrutiny and interference in your proposed custody and visitation agreements.

Preparing for a Fault-Based or Contested Divorce

  1. Establish grounds for your divorce. If you don't want to wait six to twelve months to finalize your divorce, you can file immediately based on certain grounds for divorce spelled out in Virginia law. [9]
    • Adultery, sodomy, or buggery. Sodomy includes sex acts other than intercourse and buggery generally means having sexual intercourse with an animal. To qualify as grounds for divorce, the acts must have been committed outside the bonds of the marriage and without the knowledge, consent, or participation of the spouse. [10]
    • The deviant sexual behavior grounds are extremely rare. Adultery is still a critical issue in Virginia because it is the one reason for divorce that can bar a spouse from receiving alimony. [10]
    • If you are using the sex-act based grounds, you must not have lived together from the time you found out about the act and you must file for divorce within five years of discovering the act. [11]
    • The spouse alleging one of these grounds must provide evidence that is satisfactory and conclusive to the court. An eye-witness is not required, but testimony must be corroborated. [9][12]
    • Conviction of a felony. A party may obtain a divorce on the grounds that the other party was convicted of a felony after the date of marriage and sentenced for a period of a year or more.
    • When choosing your grounds for divorce, be aware that certain defenses may be available to a spouse accused of adultery, sodomy, buggery, or conviction of a felony, such as that the other spouse willfully cohabited with him or her after discovering the adultery, sodomy, or buggery or after the convicted party was released from prison. [13]
  2. Document the marital property. Contested, fault-based divorces can become very contentious. To avoid one party hiding, squandering, or destroying marital property, you should assemble supporting documents and photographs before you file.
  3. Consult a family law attorney. The procedures to prevail in a contested fault-based divorce are complicated and open to counter-claims and allegations, both true and unfounded. If you have children, their custody and well-being can become a point of argument and contention. Before you start down a path that you can't change, talk with a good family law attorney about your rights and responsibilities.

Filing for Divorce

  1. Choose the type of divorce you want. Virginia has two different types of divorce under the law. The first is akin to a legal separation in other states, the second is the tradition dissolution of the marriage contract.
    • "Divorce from Bed and Board." This legal action preserves the legal marriage, but acts as to divide property and settle child custody and visitation. There is no waiting period for filing this action, but there must be a clear showing of desertion and cruelty. The separation cannot be mutual. The lack of mutuality requirement is what separates this type of divorce from a legal separation. [9][14]
    • "Divorce from the Bond of Matrimony." This is the traditional divorce and requires either the 6 to 12 month separation or a showing of grounds. [15][2]
  2. Draw up a petition for divorce. You will need to file for either type of divorce in the county where you or your spouse lives. Because of the different types of divorce and the grounds for divorce in Virginia, the style of the divorce petition can be complicated. You have several options.
    • For an uncontested divorce based on separation of 6 months for childless couples and 12 months for couples with children, you can use the divorce petition generator from Legal Aid of Virginia. These forms have been created and vetted by lawyers familiar with the laws of Virginia. [16]
    • Check with the court clerk in your county. Some courts have fill-in-the-blanks form packages for sale. The cost is usually under $10. However, these packages will likely be for uncontested divorces based on separation. You can attach the separation agreement you and your spouse have been living under to the petition.
    • For a fault-based divorce that is likely to be contested, it is highly recommended that you contact a family law attorney. Even if you don't hire them for representation, Virginia law allows attorneys to provide document preparation services. Fault-based divorce petitions must include properly pleaded allegations of the grounds that can pass the court's scrutiny.
    • If you are seeking a divorce from Bed and Board, you should seek legal advice and assistance with document preparation. This interim divorce not only lets you circumvent the waiting period, but also allows you to maintain benefits such as employer health insurance through your absent spouse. It must be pleaded carefully and correctly.[17]
  3. Verify that your petition covers all subjects. While a petition can be amended, it is better to cover everything in the first document. You will be serving this document on your spouse. Amended petitions will require either agreement or new service. If your spouse moves or fights you, getting new service on an amended petition can be difficult.
    • Division of property. Not only will you need to decide how to divide up your real estate and vehicles, but also your investments, bank accounts, household goods, sentimental items, retirement accounts, and any other personal property.
    • Distribution of debt. Generally a party who will keep a piece of property which is securing a loan, such as a car or house, will also keep the debt that goes along with such property. Other debt should be distributed based on each party’s contribution to the debt, ability to pay, and the amount of property he or she will receive in the divorce.
    • Child custody and visitation. If you have minor children, you should try to come to an agreement on both physical and legal custody, as well as visitation for the noncustodial parent. Physical custody refers to where the child lives. Legal custody to the parent who can make certain decisions for the child such as where he will go to school, church, or what doctors he will see.
    • Child support. In the state of Virginia, there is a presumption that one or both parties should pay child support, even in shared custody cases. To be sure that the court accepts any agreement you reach on the payment of child support, use the forms and calculations provided by the Virginia Courts. [18]
  4. Consider mediation. Before you file and serve your divorce petition, think about trying mediation. During a divorce mediation procedure, an impartial third party will help you and your spouse reach an agreement on the issues relating to your divorce.[19] Mediation will help you and your spouse stay in control of the issues surrounding your life (e.g., property separation, child custody, and spousal support) as opposed to leaving decisions up to a judge.[19] Unlike going to court, in mediation, no decision is forced upon you and the mediator is only there to help guide you through the process.[19]
    • First you will need to find a mediator. Try looking in the Yellow Pages, or you might ask your therapist or attorney for advice.[19] In some jurisdictions, the court may be able to appoint a mediator for you.[19]
    • Next, the mediator will have an orientation meeting with you and your spouse.[19] During orientation, you will learn about the mediation process and the mediator him/herself.[19]
    • If you like the mediator and the process that was described, you and your spouse will sit down with the mediator a number of times. During these meetings, the mediator will guide you through discussions about the divorce.[19]
    • If you and your spouse come to a divorce agreement with the help of the mediator, an attorney (or the mediator) will draw up a memorandum of understanding, which spells out the decisions you and your spouse agreed upon.[19] This memorandum will then become the basis of your divorce.[19]
    • If you and your spouse are unable to agree during mediation, you may need to continue the process of filing for divorce in court.
  5. File and serve your divorce petition. You can file the petition in either the county where you live or where your spouse lives. If the divorce is uncontested, you and your spouse can both sign the papers and attach a waiver of service form. [20] Otherwise, you can contact the sheriff or a private process server to deliver the divorce petition to your spouse.
    • You must pay the fee at the time of filing or the clerk will not accept it.[21]
    • If you are low income, you may qualify to have the filing fee reduced or waived. Ask the court clerk how to proceed in forma pauperis and file the appropriate form and financial information. [22]
  6. Attend your court hearing. If you and your spouse have agreed and both signed all of the documents, your court hearing should be short and to the point. The judge will review the documents and agreements and ask you and your spouse some questions. If your spouse does not attend, the judge will enter the orders as agreed. If the divorce is going to be contested, the judge will schedule additional court dates, leading up to the trial.
    • Be on time. Give yourself plenty of time to get to the courthouse, park, and find the courtroom. If you are not there when your case is called, it may be rescheduled or shuffled to the end of the docket.
    • Arrange for childcare. Many judges do not allow young children in the courtroom and they cannot be unattended in the hall.
    • Stand when you are questioned and answered clearly so the court reporter can hear you. If you do not understand a question, ask the judge to explain.
  7. Receive your divorce decree. Your divorce is final when the judge signs the decree and it is filed by the court clerk. You will need copies of the decree for property transfer, name change, and other legal changes after your divorce.



Warnings

  • Obtaining a divorce without consulting an attorney may result in a loss of property, child custody, spousal support, or child visitation rights.
  • Before signing anything that may affect your legal rights and obligations, you should consult with a licensed attorney.

Related Articles

Sources and Citations

  1. ↑ http://divorcesupport.about.com/od/maritalproblems/f/divorce.htm
  2. ↑ 2.0 2.1 2.2 http://www.fairfaxcounty.gov/ofw/pdf/vadivorceprocedures.pdf
  3. ↑ http://www.dmv.state.va.us/drivers/#applying.html
  4. ↑ http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+20-97
  5. ↑ http://www.vadivorceonline.com/vapages/divorce/divorcerequirements.asp#8
  6. ↑ http://www.wvlegalservices.org/sampsep.pdf
  7. ↑ http://www.americanbar.org/groups/delivery_legal_services/resources/pro_se_unbundling_resource_center/ethics_opinions.html
  8. ↑ http://www.vasupportcalc.com/SelectCalculator.html?phone=no
  9. ↑ 9.0 9.1 9.2 http://www.vsb.org/site/publications/divorce-in-virginia/
  10. ↑ 10.0 10.1 http://www.jameshwilsonjr.com/
  11. ↑ http://mrwba.org/wp-content/uploads/2011/12/Public-Resources-+-Domestic-Relations-Rights-in-VA-Booklet.pdf
  12. ↑ http://www.divorcenet.com/states/virginia/proving_extramarital_sex_in_va
  13. ↑ http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+20-94
  14. ↑ http://smithwellspc.com/2011/06/virginia-divorce-from-%E2%80%9Cbed-and-board%E2%80%9D/
  15. ↑ http://www.valegalaid.org/divorce
  16. ↑ https://lawhelpinteractive.org/Interview/GenerateInterview/2655/engine
  17. ↑ http://www.divorcesource.com/ds/newjersey/what-is-a-divorce-from-bed-and-board--3961.shtml
  18. ↑ http://www.courts.state.va.us/forms/district/dc637.pdf
  19. ↑ 19.0 19.1 19.2 19.3 19.4 19.5 19.6 19.7 19.8 19.9 http://www.fairfaxcounty.gov/ofw/pdf/separation_divorce_handbook.pdf
  20. ↑ http://www.courts.state.va.us/forms/circuit/cc1406.pdf
  21. ↑ http://webdev.courts.state.va.us/cgi-bin/DJIT/ef_djs_ccfees_calc.cgi#ID_CALC_FRM
  22. ↑ http://www.courts.state.va.us/forms/district/dc606.pdf

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