No matter where you are, divorce is stressful. In Virginia, the divorce process is nuanced at best.
In this guide to divorce in Virginia, you’ll get a better understanding of the many intricacies of separation and divorce so you can make the most informed decisions possible going forward.
Jump to a Section
Filing for Divorce in Virginia
When it comes to filing for divorce in our great Commonwealth, Virginia divorce law is spelled out in a stack of statutes called the Code of Virginia. These are laws created by Virginia Legislature. Every good family law attorney knows the Code, and the Code covers just about every contingency. Under the law you can divorce someone living out of state, separate while living under the same roof, share child custody, and equitably (not equally) split marital assets.
Whenever Virginia divorce laws confuse and confound attorneys and judges in Circuit Courts, the Supreme Court of Virginia untangles the issues, creating case law. Between the statutes and case law, you are protected and guided by Virginia’s divorce laws.
Virginia Divorce Process
To get a divorce in Virginia, at least one of you must be a resident of the Commonwealth for six months. Reno might be Hollywood’s go-to divorce capital for movies and such, but divorce in VA is relatively easy and straightforward with the right divorce lawyer.
Along with figuring out how to get a divorce in the Commonwealth, you also need to plan for separation, understand the grounds for divorce, contend with kids, and attempt to make an agreement to split all your assets and debts.
For most Virginians, knowing how to get divorced is not a marketable skill. With any luck and Cupid’s bow, you will only go through the process once. You do not need to be an expert. Trust an experienced divorce attorney to guide you through the steps.
All the steps, and all rooted in law.
Steps to Divorce
Because every human is unique, every Virginia divorce is unique. The Virginia divorce process your friend followed may not match the steps of your divorce.
In general, though, you and your spouse may go through about eight steps:
- Planning — Separation and divorce is complicated, so both of you should do some pre-divorce preparation – do your research, schedule a consultation, and devise a way forward
- Separation — Six months apart if you have no kids; a year if you have children
- Filing — Your family law attorney (or your spouse’s) will file legal papers with the Virginia Circuit Court having jurisdiction; you can also file for divorce in VA yourself, through a pro se process in which you represent yourself
- Process Service — Virginia divorce papers are served from the divorcing spouse to the spouse being divorced (that can be in your same county, in Virginia, or out of state)
- Pendente Lite orders — “While the matter is pending,” a judge may issue temporary orders regarding things like child custody, spousal support, living arrangements, visitation, and other issues
- Discovery — Assuming you both need to take your divorce before a Circuit Court judge, both attorneys will provide vital information to the opposing attorney
- Settlement — At this juncture, your divorce could be settled outside of court, could be sent for mediation, or could be decided before a judge in court
- Final decree — The Circuit Court judge will either approve a settlement or mediated divorce or will issue a final divorce decree
Virginia Courts and Jurisdiction
Divorce and child custody issues are handled by two different court systems in Virginia. Your separation and divorce will be seen by a Virginia Circuit Court judge. After divorce, legal matters relating to your kids go through Juvenile and Domestic Relations Court.
Virginia’s 31 judicial circuits have 120 separate circuit courts in the counties and cities of the Commonwealth. Only one circuit court has jurisdiction, or legal authority, over your separation and divorce lawsuit. This territorial jurisdiction is generally determined by the domicile (intended permanent residence) the two divorcing parties last inhabited as a married couple.
But, both parties can move from the marital home before filing suit for divorce, as long as either the petitioner (one filing for divorce) or the respondent (the other spouse) uses a Virginia address as a current residence.
One of the two divorcing parties must be a legal resident of Virginia for six months before the suit for divorce is filed.
Do I Have to Hire a Family Lawyer?
You are not legally required to hire a family law attorney to handle your separation and divorce in Virginia. Through a valid process called pro se representation, you can complete paperwork provided by Virginia’s court system to file for divorce.
The courts, however, have no legal duty to provide you with advice or correct your mistakes. When you hire an experienced family law attorney, you can rely on a professional who understands and avoids all the stumbling blocks in the often long legal process that is a Virginia separation and divorce, saving you time and money or even costly mistakes.
What Type of Attorney Do I Need for Divorce?
To handle a Virginia divorce filing, turn to a Virginia divorce attorney. Avoid criminal lawyers, contract lawyers, and real estate lawyers. You need experience in Virginia family law, which is a civil procedure. You need an attorney with familiarity of the many snares and traps along the very long path from separation through divorce.
Unlike some legal processes, divorce takes many months in most instances. You need an attorney who will keep track of the court calendar, schedule conferences and negotiations efficiently, and constantly look out for your interests.
Separation in Virginia
How Long Do We Have to be Separated?
Usually, before a couple can divorce, they must separate (live apart). A couple must be separated while married for six months (if they produced no children) or a year (if they have children). After the prescribed time has elapsed, your divorce lawyer (or your Virginia spouse’s) can file for divorce.
No such thing exists as Virginia legal separation; you are either married or unmarried in the Commonwealth. While you and your spouse are separated, you are still married but living apart. You can even live under the same roof as long as you meet certain criteria for living separate lives. To separate in Virginia, most couples seek attorneys to help them. The legal system is not designed for amateurs, but Virginia’s courts do provide ways for do-it-yourself legal filings, though most attorneys and judges do not recommend this method.
What Is a Separation Agreement, and Do I Have to Have One?
Before you divorce, you separate. Together you and your spouse use a separation agreement to arrange outcomes for custody of children, support payments for children, distribution of property, and spousal support.
If you and your spouse are separating amicably and your marital assets are minimal, and you have no children from the marriage, you may think you can skip a separation agreement. Still, unforeseen issues can always crop up, and having a property settlement agreement in place can smooth out differences.
In the property settlement agreement or separation agreement, you and your spouse lay the groundwork for life after divorce. You decide who will have custody of your kids, how much child support should be paid, if spousal support should be paid and for how long, and what you two will do with all your assets and liabilities.
Settlement Proposals and Negotiation
In the hands of two capable family law attorneys, settlement proposals can go back and forth in a search for equity.
Each party should work with an attorney to make a list of priorities. You may want to hold onto your automotive repair tools but be willing to part with a vacation home. Your spouse may want all the ATVs and boats but is willing to sell off the marital home and split the proceeds.
In most instances, negotiations for the final property settlement agreement go through attorneys, who can remove much of the emotion from the arguments.
Will I Pay or Receive Spousal Support?
Spousal support is never an assumption in Virginia divorce. Many factors affect a judge’s ruling to provide spousal support during separation and after divorce.
If the marriage is brief, if both parties have skills and are gainfully employed, and if minor children are not in the picture, neither party may be obligated to pay spousal support.
If, though, one spouse sacrificed a career to raise children of the marriage, if one spouse has very limited job skills, or if a lengthy marriage has left a spouse nearly unemployable, spousal support may be seen as the morally and financially responsible response to the divorce.
Equitable Distribution
Virginia uses equitable distribution, not equal distribution, in assigning assets and liabilities to the two divorcing parties. Equal distribution would mean each party gets half of all assets and debts, regardless of their source or the party’s income, whereas equitable distribution considers many factors.
Discovery Process
A family law attorney will use the process of discovery, or the exchange of important information and evidence between the two parties, as part of a separation and divorce proceeding. If you attempt a pro se divorce, you may not even contend with discovery, since you will likely be focused on completing necessary court paperwork and ensuring correct filing schedules.
For a family law office, discovery gives your attorney the opportunity to scrutinize both parties’ finances. Equitable distribution of assets and liabilities can only happen if both sides have the same set of numbers before them. That can only happen through discovery.
In contested, fault-grounds divorce, discovery allows presentation of evidence of the allegations the petitioner is making (adultery, desertion, and the like) as well.
Kids and Divorce
If you and your spouse produced children from your marriage, continued care and financial security for them are critical parts of your divorce. You have to agree with your spouse on child custody and child support.
Child Custody and Parenting Time
Child custody in Virginia generally means two types: physical custody refers to the actual location and care of the child, while legal custody refers to decision-making for the child’s benefit.
Physical custody can be done as sole custody (one parent cares for the children and the other parent visits) or joint custody (parenting is divided in some way between the two parents).
Joint custody has many variations, including shared (one parent has more responsibility and time than the other parent) and split (both parents have the children for roughly equal time).
Legal custody can also be sole custody (one parent makes all the legal decisions) or joint custody (both parents work together regarding education, religion, and medical issues).
Also to consider are parenting time schedules which should always include holidays, school breaks, and directives for special occasions like birthdays and Mother’s and Father’s day.
Will I Pay/Receive Child Support?
Generally, the parent who has the majority of physical custody of the marriage’s children will receive child support from the other parent.
Child support payments follow guidelines from the Code of Virginia, though both parties can make arguments for more or less support. The payments are calculated based on many factors, including the payor’s income, number of children, and other circumstances such as a special needs child and other sources of income for the custodial parent.
Zero Bracket
In establishing child support guidelines, Virginia has a contribution amount for every category of income, including parents with no income. These Zero Bracket parents are still expected to contribute at least $68 a month in child support. This sounds contradictory (“I make nothing but am supposed to pay $68?”) but another section of the law provides for an exemption for a lack of sufficient assets.
Types of Divorce
Uncontested Divorce
Uncontested, or “agreed” divorce in VA means both sides agree on the important points of the divorce: child custody, child support, spousal support, parental visitation (visiting time), and property division.
For Virginia’s uncontested divorce laws adultery cannot be introduced into the discussion unless your spouse is willing to admit to the reputationally damaging crime of adultery.
Uncontested divorce generally moves smoothly through the separation and divorce process with minimal surprises. At any time, however, an uncontested divorce can become contested if some disagreement arises that cannot be resolved by the two parties and their attorneys.
Uncontested divorce is not usually associated with fault-grounds divorce.
Contested Divorce
Early in the process, you’ll have a good idea of what type of divorce you want to pursue. Your four choices are uncontested or contested divorce, and then a no-fault or fault grounds divorce.
Contested divorce in VA means one party challenges the assertions and demands of the other party. Examples include disagreements over property settlement and child custody. If the disagreements cannot be worked out through attorney-supervised negotiations and conferences, you have a contested divorce.
The typical no-fault divorce that Virginia courts handle allows both parties to agree that neither side has committed a crime or harmed the other. No-fault divorce in Virginia, when coupled with uncontested divorce, results in the fastest, least expensive divorce overseen by attorneys and the courts.
Pro se Divorce in Virginia
If you and your spouse have decided on a no-fault, uncontested divorce, you may wonder how to separate in Virginia and then follow up with divorce papers. Virginia’s courts recognize pro se separation and divorce, meaning you represent yourself.
With pro se separation and divorce, you do not use a family law attorney.
If your assets and debts are minimal, if your lives are extremely simple, if you have very few financial positions such as retirement accounts and investments, you may feel the easiest way to get a divorce is by filing the papers directly with the courts.
To accomplish a pro se filing for divorce, you must make sure you have the correct court, jurisdiction, supporting documents, and court clerk. Generally, your average Virginian makes an understandable error along the way and — again, generally — has to start over.
Is Annulment an Option?
Annulment provides a legal way to say the marriage never happened. It is not a divorce. A Virginia marriage can be annulled for a variety of reasons. A lawsuit petitioning for annulment can be filed if a party married under duress or as a victim of fraud.
Other reasons to annul a marriage include marrying without a marriage license, marrying incestuously, marrying while already married to another, or marrying when either party is less than 18 years of age. Additionally, you can ask a Virginia court for annulment if the other party demonstrates mental incapacity or infirmity, hid impotency, hid a pregnancy, or hid a felony conviction from you.
How to Get Divorced Without Waiting a Year
You have two ways to get a divorce in Virginia without the required one-year waiting period for filing the divorce lawsuit.
If you and your spouse have no children from the marriage, your wait is only six months.
The other path to a shorter waiting period is through fault-grounds divorce.
Fault Grounds for Divorce
While many divorces use Virginia’s “no-fault” method of not assigning blame for a failed marriage, some Virginians divorce due to faults. The law recognizes several faults, such as adultery. Adultery in Virginia divorce is one of the recognized fault grounds but is also very difficult to prove.
Virginia acknowledges other grounds for divorce, including felony conviction resulting in a year in prison, desertion, and cruelty. Fault grounds are serious blows to anyone’s good standing in the community, so most divorcing couples avoid fault divorce in VA. The advantage of using fault grounds for divorce in Virginia is speed; fault grounds allow for immediate filing (as opposed to a waiting period for no-fault divorce).
Considering Divorce? Don’t Go in Blind.
Divorce is anything but easy—in fact, it may be one of the toughest events you face. An experienced family lawyer can provide you with sound legal counsel based on your unique situation, help to neutralize emotionally charged decisions, and help you to move forward with your goals in mind. Whether your matter is heavily contested, simple and straightforward, or anywhere in between, The Firm For Men stands ready to help. Call our Virginia Beach office today at 757-383-9184 and schedule a consultation.