Dreading the end of your marriage and the upcoming painful litigation that a divorce can cause? Seeking an uncontested divorce can save you time, money, and an emotional headache.
This article will explain the nature of an uncontested divorce and Virginia uncontested divorce law. If you still have any questions after reading this article or would like to file for an uncontested divorce, you should consult with an experienced divorce attorney.
Uncontested Divorce in Virginia Defined
In Virginia, there are two types of divorce: divorce from bed and board and an absolute divorce. A divorce from bed and board is not a full divorce in that the spouses cannot remarry after the divorce, but spousal support and child custody issues can be determined. An absolute divorce is a true divorce; however, spouses who wish to separate cannot request an absolute divorce unless they have been living apart for at least one year. Normally, spouses who want to immediately file for a divorce from bed and board and ask the Virginia courts to automatically transition the divorce from bed and board into an absolute divorce after one year.
Unfortunately, unlike some states, there is not a specific mechanism for the filing of an uncontested divorce. Instead a Virginia uncontested divorce is a standard divorce filing, like those described above, but where the divorce filing is uncontested. By law, any couple can seek an uncontested divorce after living apart for one year in any case, or after living apart for six months if they have no children and have executed a property settlement agreement.
Normally, an uncontested divorce in Virginia will involve a legal separation agreement that describes the terms of the divorce as agreed to by the spouses. Under Virginia law, separation agreements cannot settle issues regarding child custody and child support payments, so a court will still need to rule on those issues.
Requirements for Seeking a Virginia Uncontested Divorce
To file for uncontested divorce in Virginia, the filing spouses must meet certain requirements. In Virginia, there are three requirements: (1) a valid marriage, (2) jurisdictions, and (3) grounds. Any questions about these requirements can be answered by an experienced Virginia divorce attorney or family lawyer.
Virginia’s jurisdictional requirement is a residency requirement. To file for a divorce in Virginia, the filing party must have been living within the state for at least six months, and must also have an intent to remain as a resident within Virginia for the foreseeable future (in other words, the filing spouse has no immediate plans to move out of the state).
To secure an absolute divorce, Virginia provides four at-fault grounds for divorce and a no-fault provision. In general, uncontested divorces will proceed under the no-fault provision because it is rare that one spouse will want to agree to being at-fault.
The four grounds for at-fault divorce are: adultery, sodomy and buggery, desertion or cruelty, or imprisonment of one spouse as a result of a felony conviction. Virginia’s no-fault divorce law allows a couple to file for divorce after either one year of separation, or six months of separation where the marriage produced no children and the spouses present a separation agreement to the court.
On Spousal Support and Separation Agreements
When spouses sit down to discuss the terms of their divorce, it is often beneficial for the spouses to sign a legal separation agreement. A separation agreement is NOT a formal divorce. A separation agreement is a contract between spouses that lays out their agreement and terms of their separation. A fully completed separation agreement can serve as the basis for an uncontested divorce, and may be helpful in filling out the required divorce paperwork. Prior to signing any separation agreement (or any contract with your spouse), you should have an experienced attorney review the terms of the contract for you.
Most divorce related issues can be resolved by a property settlement agreement or a separation agreement in Virginia. A complete agreement should address the following issues:
- The amount of spousal support;
- Division of marital property (including real estate, personal property, and pets); and
- Assignment of remaining assets and debts
In Virginia, if the divorcing spouses have not agreed on the issues by filing a separation agreement with the court, a judge will have to make a ruling on each of those issues. As discussed above, separation agreements cannot legally provide for child custody arrangements and child support in Virginia, which means that couples with children seeking a divorce will still need to file child support guidelines.
The Process for Filing for an Uncontested Divorce in Virginia
Divorce filings are always filed in the circuit court serving the area in which the filing spouse resides. Virginia has both city and county circuit courts, and if you live in a city (as opposed to a town or unincorporated county territory), you should call your local courthouse to ask whether filing is appropriate in either the city or the county in which you live.
Once you have determined which court is the proper court for filing, the general flow of the process is follows:
- This step is optional, but you should begin by consulting a family law attorney who can either answer any questions that you may have, or who can help you file your divorce paperwork properly;
- Discuss property settlement and a separation agreement with your spouse. To allow court proceedings to move quickly, agreement with your spouse beforehand (such as by signing a separation agreement) can quickly resolve issues by reducing the number of issues that a judge has to rule on.
- Prepare divorce paperwork. Unlike many states, Virginia does NOT have standardized divorce forms. Instead, you will need to hire an attorney to draft and file a divorce complaint for you. If you either do not want to hire and attorney or cannot afford an attorney, Fairfax County has compiled a do-it-yourself packet for divorce filings.1 If you using the Fairfax county packet to file for divorce in other parts of Virginia, keep in mind that you will need to change any jurisdictional information in your filing.
- File the divorce paperwork in the appropriate Circuit Court. This paperwork will include a bill of complaint, VS-4 state statistical forms, a domestic case cover sheet, the filing fee, a notice of divorce hearing request, and (if applicable) a child support guidelines worksheet.2
- Serve the divorce paperwork on your spouse either in person or by hiring a professional process server.
- Once a hearing date has been set, you and your spouse must appear before a judge to resolve your divorce filing. Any testimony you provide must be supported by corroborating evidence (for example, proof of adultery will not be accepted without witnesses or photographs proving that adultery occurred). At the hearing, you and your spouse will present your separation agreement, if you have one, and the judge will rule on all child-related issues. After the proceeding, the judge will finalize your divorce
Note: This article is not legal advice. Please consult a lawyer for your specific situation.
- John T. Frey, Pro Se Divorce Package, FAIRFAX CIRCUIT COURT (July 2016)
- Divorce Information, FAIRFAX COUNTY COURT