No-Fault Divorce

There are a lot of states where it is really easy to get a divorce.

Virginia is not one of these!

First of all, you cannot get a 'quickie' divorce in Virginia.

In order to get a 'no fault' divorce (one that is not based on grounds), you need to have been separated from your spouse for 12 months before you can even file for divorce.

If there are no children in the marriage AND you have a signed Property Settlement Agreement, you can shorten that time to only 6 months.

If the couple has children together (even if they were born before you were married), then you need to wait the 12 months, even if you have a signed Property Settlement Agreement.

Fault Based Divorce

In Virginia, you can still get a divorce based on the 'ground' of adultery. You do not need to wait to file for a divorce based on this ground, but this does not mean it is easier.

First of all, adultery is a crime in Virginia.

There are some jurisdictions where you can use circumstantial evidence to show adultery, such as there had been public displays of affection and there is evidence that the parties spent the night together in the same place.

But, there are other jurisdictions where the judge requires that the adultery be proved beyond a reasonable doubt. That's much harder unless you have actual pictures of the sexual union, or the other party is willing to admit to this crime.

There is also the fault of cruelty, but this fault ground also requires that the divorce cannot be granted for a period of 12 months, which means you can't get finally divorced any faster than if you wait and file for the divorce based on a period of separation.

Contrary to the viewpoint of a lot of people who come into my office, mental cruelty doesn't count. This cruelty must result in physical evidence.

There are also a lot of special rules about when you can use these grounds to file for a divorce which make it even harder to use.

Contested vs. Non-Contested Divorce

A non-contested divorce is where the parties agree to everything and the process runs very smoothly.

Most of the time, one party does not have an attorney of their own, or they might have an attorney just for the purpose of reviewing the Property Settlement Agreement.

Often, the parties have already reached agreement on who gets what, and they bring a written outline of an agreement into the attorney's office.

Non-contested divorces are often handled on a flat-fee basis by the attorney handling the case.

If there is a disagreement about anything, the case is considered contested and the time and cost is generally increased.

Some attorney's handle these contested divorce cases on a flat-fee basis (much higher than the non-contested cases) or on a billable hour basis.

There are also some attorneys who handle non-contested divorces, but who do not handle divorces if they are contested, even if they started out as non-contested matters.

In the situation where the case changes from non-contested to contested, sometimes you will need to find another attorney part way through the process.

Property Division

When a couple decides to get a divorce, they must divide their marital property.

Virginia is what is known as an 'Equitable Distribution' state where 'equitable' means fair and not necessarily equal. However, it is often the case where fair is equal.

Generally, marital property is property that was acquired during the marriage, regardless of how that property is titled.

Property division is generally handled in the Property Settlement Agreement, or in a more expensive court hearing named an 'Equitable Distribution Hearing'.

Spousal Support (Alimony)

Spousal support can be awarded on the discretion of the judge who uses a number of criteria to make his decision.

These criteria include the age and health of the parties, the relative earning potential and the length of the marriage.

And yes, the judge can order that the Wife pay Spousal Support to the Husband.

The Process

A divorce is a special type of civil lawsuit. In Virginia, you need to file a Complaint for Divorce to get the case started with the courts.

The first step is to make sure you are filing in the correct court.

Some courts in Virginia will take a divorce case for anyone as long as at least one of the parties has been a resident of Virginia for at least 6 months.

Other courts require that there be some additional connection to the area where the court is located.

If the case is filed in a wrong court, you may need to either have the case transferred, or have the case dismissed and file again in the right court.

Like any other civil lawsuit, both sides to the lawsuit must be aware that the suit has been filed so they can properly defend their position.

There are some special processes that can be used if you don't know where your spouse is currently living.

Testimony

In some courts in Virginia, such as the City of Hampton, you need to go to the courthouse and give testimony about the case in order to have the judge grant the divorce.

In other courts, such as Yorktown, Newport News Williamsburg and Gloucester, the judges do not hear these types of cases at all, and you need to have the testimony taken in an attorney's office where you testify under oath.

The questions are the same, but the process is a little different.

Can I do my divorce on my own?

It is not easy to get a divorce in Virginia if you don't know what you are doing.

There are some online services that say they can help you get a divorce without an attorney, and I've seen some of these work.

I also get a call almost every month from people who start the process using an online divorce service and find they need legal help to get things finished.

Unfortunately, most of the time, the attorney needs to redo a lot of the paperwork and the process ends up costing a lot more than if the client had come to the attorney at the beginning.

Child Custody and Support

Please see our page on Child Custody in Virginia for more information if your family unit includes minor children.

More Questions?

This is just a small sampling of the parts of a divorce in Virginia. Please contact us or check out our blog if you have questions that have not been answered here.

Contact Us

Now you can also pay with Master Card, VISA and Discover credit cards!

Have questions? Perhaps you can find the answer in one of our blog posts about Divorce in Virginia. Check here first.

Call 757-234-4650 today to schedule a consultation