HOW TO GET A DIVORCE IN VIRGINIA?
You are ready for divorce, but are paralyzed by fear because the process seems so daunting. So how exactly does a divorce case move forward in Virginia? The divorce process in Virginia can be simplified into the 5 steps below.
STEP 1: FILING FOR DIVORCE
In Virginia, the litigation process begins with one spouse filing a Complaint for divorce. The filing spouse is called the Plaintiff and the opposing spouse is referred to as the Defendant.
For a party to be able to file in Virginia, certain residency requirements must be met. At the time the suit is initiated, one of the parties must have been a bonafide resident and domiciliary for six months preceding the filing such suit. A divorce can technically be filed in any circuit court within the Commonwealth. However, an experienced divorce attorney will be able to assist you in filing in the best jurisdiction for your case given the local rules and your individual circumstances.
Once the Defendant is served with the Complaint, he/she will have 21 days to file an Answer and Counterclaim or other responsive pleading.
STEP 2: DETERMINING GROUNDS FOR DIVORCE
Virginia is a “no-fault” divorce state. In simple terms, this is when a marriage ends due to irreconcilable differences. If you choose to file on no-fault grounds, when you can file hinges mainly on two facts: 1) whether you have minor children, and 2) whether you have a settlement agreement. If you have minor children, you may only file if you have been separated for at least one year. If you have no minor children and a signed settlement agreement, then you may file if you have been separated for at least 6 months.
In addition, a Plaintiff may seek a divorce on fault grounds. Available fault grounds include cruelty, adultery, abandonment, and felony convictions. Proving a fault ground can impact how the court resolves the equitable distribution of the case and depending on the actions of the at-fault spouse, their actions may affect custody. For example, if you can prove that your spouse committed adultery or abused you during the marriage, the court could award you more of the marital property.
STEP 3: PENDENTE LITE OR TEMPORARY ORDERS
Once the Complaint is filed, either party can seek that the court enter temporary or pendente lite orders related to custody, child support, spousal support and property. These hearings can happen quickly, sometimes within a week of when the Complaint is filed depending on the local procedures where you file. A pendente lite hearing can be like a mini-trial. Each party will be permitted to testify and put on evidence and have witnesses testify regarding the matter.
Why Temporary Orders Are Important
Given that your case could be pending for months before trial, pendente lite orders may be critical in your case.
For example, these orders can prevent the parties from dissipating marital assets, liquidating accounts, and not paying the mortgage or utilities. The court can order a spouse to pay spousal and child support or advance attorney's fees. In addition, a temporary custodial schedule can be set up for the children.
Relief awarded by the court at a pendente lite hearing can include the following:
- Spousal and child support;
- Advance of attorney's fees and expenses;
- Prohibition on the dissipation of assets or incurring new debts;
- Exclusive possession of the marital home;
- Assigning the division of bills and utilities between the parties;
- Restraining the parties from harassing each other; and,
- Custodial schedules for the minor children.
STEP 4: DISCOVERY
Once the Complaint is filed (and you've possibly filed for a pendente lite hearing), discovery is important stage in the litigation process. It is important to gather the information necessary to evaluate the merits of the parties' positions in anticipation of trial. Using discovery as a tool ensures that there is no trial by fire and can push the parties towards settlement.
Conducting discovery is invasive and expensive. This process is available to both sides, using various discovery tools such as requests for production of documents, interrogatories and depositions to obtain relevant information about the case in order to prepare for trial related to the parties' finances,custody, witnesses, and trial positions. Discovery is not necessary before a pendente lite hearing, but it would be nice information to have if you have enough time to get it.
It's important to remember that in a divorce case, anything related to the case is fair game and may be obtained with the use of the various discovery tools.
STEP 5: SETTLEMENT, MEDIATION, AND FINAL TRIAL
At some point before trial, the parties will usually try to reach settlement in their case. In actuality, most divorce cases are settled before trial because once you enter the courtroom, you have lost control of your case. At the trial stage, you no longer get to make decisions about how you and your spouse will divide time between the kids or your assets. The judge will hear each parties' evidence for a few days and make a final determination for the parties. However, if the parties are able to reach agreement on the issues before trial, the divorce attorneys involved can ask for the court to incorporate a written settlement agreement into the final order of divorce.
Another option before trial, the parties may also choose to mediate their case. Mediation is a process in which an impartial person (typically a judge or another lawyer) assists the parties in reaching an agreement that resolves some or all of the issues in dispute. It is a prudent and cost-saving idea for you to attempt mediation as a last ditch effort before trial if possible if you have been unable to reach settlement just through the negotiation of your settlement agreement. In the end, it can either narrow your issues for trial or settle the case entirely alleviating you of future trial costs and continued emotional stress.
If the parties still are unable to resolve their issues through mediation, the next step is a final trial before a judge or jury. In the majority of cases, these cases are bench trials before a judge in which the judge decides the outcome of your case.
Now that you have the steps about how to file for divorce in Virginia, it's important to remember that you should retain an attorney as early in the process as possible so that you aren't wasting time, money, and emotional stress. Each courthouse has its own set of local rules but an experienced divorce lawyer can help you navigate the different options to help you determine what is the best path forward. Read more about how we have helped our clients here.