The idea of filing for divorce may be overwhelming. Naturally, people may worry about finances, children, and where to live. On top of that, the actual process of filing for divorce may seem daunting. The process itself doesn’t always need to be complicated. Consulting a family law attorney can help prepare individuals for how the process will go and what to expect.
Grounds for Divorce in Virginia
In Virginia, the person filing for divorce needs to have “grounds” for divorce. The fault grounds authorized in Virginia include: adultery, felony, cruelty, and desertion. Alternatively, a spouse may file for “no-fault divorce” after separation.
- Adultery - In Virginia, adultery constitutes grounds for divorce, but requires corroboration of evidence of one spouse having intimate relations with a party outside the marriage.
- Felony - A spouse can also file for divorce if the other spouse is convicted of a felony after the marriage, which resulted in confinement for at least one year.
- Cruelty - An individual can file for divorce if his or her spouse is guilty of cruelty or caused reasonable apprehension of bodily hurt. Cruelty typically requires conduct that causes bodily harm or fear of bodily harm and makes living together unsafe.
- Desertion - A spouse may also file for divorce if he or she was willfully deserted or abandoned by the other spouse. Desertion requires a spouse to willfully separate from the other spouse without justification with the intent to remain separated permanently.
- Separation - A spouse may file for divorce after being separated and living apart for one year, if the couple has minor children, or 6 months, if the couple doesn’t have minor children and enters into a separation agreement.
Filing for Divorce
An individual must be a legal resident in Virginia for at least 6 months before filing for divorce. If filing for a no-fault divorce, a couple must be separated for one year before filing for divorce, if the couple has minor children, or 6 months if the spouses don’t have minor children and enter into a separation agreement establishing how property will be divided.
Filing for divorce in Virginia generally consists of filing certain forms with your local circuit court. Each county has their own rules and may have different forms so it’s best to get the required forms from your local courthouse in person or from their website. Filing these forms starts the divorce process. After an individual files the divorce forms, their spouse needs to be “served.” This means that the spouse receives copies of the divorce papers filed so they have proper notice of the divorce request, referred to as “service of process.” In Virginia, a spouse has 21 days from the date he or she was served with the divorce paperwork to respond. The initial document filed to start the process is a Complaint and a spouse will respond by filing an Answer. The Complaint will set out the facts of the case and any grounds for divorce the spouse is alleging. In the Answer, the individual must respond to all allegations made in the Complaint.
The divorce process doesn’t look the same for all couples. Generally, the level of contention between spouses will dictate how the process goes. More amicable spouses may be able to proceed with a more informal alternative dispute resolution divorce. If spouses are able to agree on every aspect divorce matters, they may file for an uncontested divorce. Alternatively, if the divorce is contentious and a marital agreement isn’t in place, the couple will need the court to make relevant determinations. An uncontested divorce or divorce handled through alternative dispute resolution will typically be resolved quicker and less expensive than a traditional litigated divorce.
If both spouses agree on all divorce matters, the divorce is “uncontested.” Uncontested divorces are typically settled quicker and less expensive. To seek an uncontested divorce, the parties must agree to file for a “no-fault” divorce, meaning that it’s not either spouse’s fault that the marriage is ending. To file for an uncontested divorce, one spouse must complete and submit specific forms to the court.
To be eligible to obtain an uncontested divorce, both spouses need to agree on every issue of the divorce, including issues regarding property and children. A joint separation agreement will need to be signed by both spouses, which divides a couple’s assets and responsibilities following the divorce. Additionally, if the couple has minor children, they must also include provisions about visitation, custody, child support, and insurance coverage for the children.
Some uncontested divorces in Virginia will be heard in court, while others can be heard through a deposition or affidavit. You can typically avoid having to go to court if you request to have a hearing by deposition or affidavit and submit additional documents.
Mediated or Collaborative Divorce
Not all divorces need to be contested and decided by a judge in a courtroom. Spouses that are more amicable can seek alternative dispute resolution rather than a court hearing. Instead of a hearing in front of a judge, spouses can proceed with a mediated divorce. Mediation is a process involving spouses attempting to resolve their disputes with the help of a third party, known as a mediator. Divorce mediation is more cost effective than divorce litigation in a courtroom, as well as usually speedier.
Additionally, while the court process is adversarial, mediation typically helps spouses compromise, which helps speed up the process. There is also the added benefit that because mediation is less adversarial and involves less confrontation, spouses that choose mediation may leave the divorce more amicable, which is especially important if children are involved. Another benefit of mediation is privacy. Court proceedings of litigated divorces are public record, whereas the mediation process is not part of the public record and can be kept confidential.
Another method of divorce alternative dispute resolution is collaborative divorce. Collaborative divorce involves out of court sessions where spouses receive legal advice from attorneys trained in the collaborative process with the goal of an amicable and fair resolution for both parties. While it shares similarities with mediation in that it is often cheaper and faster than litigated divorce, collaborative divorce includes guidance from trained divorce lawyers.
Collaborative divorce often includes a team of professionals, in addition to divorce attorneys, such as a mental health professional to assist with communication and child-related issues, and a financial professional to assist with collecting necessary financial information regarding assets and debts of the parties. This collaborative team works together with the spouses to work through emotional, financial, and legal issues to come to a mutual agreement of the parties’ rights and obligations after divorce.
If the spouses are able to agree on divorce related issues, they can enter into a separation agreement. A separation agreement establishes the parties’ rights and obligations regarding marital debts and assets after a divorce. If the couple has children, the separation agreement will likely also address child support and child custody and visitation issues. However, even if the parties agree on issues of child custody, support, and visitation in a separation agreement, the court must approve the agreement to ensure it is in the best interests of the child. The existence of a separation agreement provides the spouses greater control over the disposition of assets rather than letting the court decide. Separation agreements can also cover issues that the court doesn’t have jurisdiction over, such as post-secondary education expenses.
Premarital, or prenuptial agreements, are agreements a couple enters into before getting married that become effective once the parties are married. The agreement can discuss issues such as what will be classified as separate and marital property, property division after a divorce, spousal support, the allocation of labor and resources during the marriage, child custody and visitation, and child support. Courts will typically enforce marital agreements upon divorce. If a couple has a valid marital agreement in place that addresses divorce-related issues, the divorce process will likely be resolved quicker since those determinations have already been made.
Divorce may seem overwhelming, but it doesn’t have to be. An experienced family law attorney can help you prepare and guide you through the process. Family law attorneys at General Counsel, P.C. are experienced in all aspects of divorce and can help you navigate the process. Call us today at 703-991-7973 and see how we can help you.