How Do I File for Divorce in Virginia?

The divorce process in Virginia can be complicated. The information below should help you get started as you plan to file for divorce in Virginia.

How Do I File for Divorce in Virginia?

Divorce is a tricky thing. It can involve disputes over alimony, property, child support, child custody, and even neglect and abuse. Even in “simpler” divorces, there are still uncomfortable conversations and difficult decisions to be made.

If you have decided that a divorce is right for you, then it is imperative that you know how to file for a divorce in Virginia. Divorce laws are complex, and if you do not file properly, you may not get a divorce at all. It is recommended that you contact an experienced attorney to advise you through the process.

To file for a divorce in Virginia, you have to know (1) what kind of divorce are you seeking, (2) where do you have to file, and (3) what procedures do you need to follow?

What Kind of Divorce Are You Seeking?

There are two types of divorces in Virginia: (1) absolute divorce and (2) bed and board divorce. Each one has different requirements that you must meet, and each results in a different outcome, so you want to be careful in choosing which one to pursue.

Absolute divorce

An absolute divorce is the most common divorce sought in Virginia. It is defined as “the legal termination of a valid marriage.”[1] This means that both parties are no longer married and are free to marry another person at any time, if they wish.

However, because absolute divorce was created by a statute, there are strict requirements which you must comply with.[2] An absolute divorce may be granted on any one of the following grounds:[3]

Fault Grounds

  1. If your spouse has committed one of the following acts:
    1. Adultery (sexual intercourse with another person);
    2. Sodomy (oral or anal sex with another person or an animal); or
    3. Buggery (sexual intercourse with an animal).
  1. If your spouse (a) has been convicted of a felony during your marriage, (b) has been sentenced to more than one year of confinement, (c) is consequently confined, and (d) you do not resume cohabitation with your spouse after you learn of the sentence.

An absolute divorce may be granted at any time on grounds 1 or 2; there is no required waiting period for these grounds.

  1. If your spouse (a) has committed acts of cruelty against you and (b) you fear for your life, safety or health.
  2. If your spouse has willfully deserted or abandoned you.

An absolute divorce may be granted on grounds 3 or 4 one year after the date of your spouse’s desertion or act(s) of cruelty. However, if one year has not passed, you can file for a bed and board divorce (see below) on grounds 3 or 4 because there is no waiting period for this type of divorce. Then, after one year has passed from the act(s) or your separation, your bed and board divorce may be legally merged into an absolute divorce.

No-Fault Grounds

  1. If you and your spouse have lived separate and apart for six months, but only if you and your spouse (a) do not have any minor children and (b) have signed a written separation agreement.
  1. If you and your spouse have lived separate and apart for one year if either:
    1. You and your spouse have minor children—whether or not you have entered into a written separation agreement; or
    2. You and your spouse do not have minor children but you have not signed a written separation agreement.

An absolute divorce may be granted on grounds 5 or 6 if you and your spouse have lived separate and apart for the required time period. You do not have to claim that your spouse did something “wrong”.

Living separate means that the separation must be (a) continuous, (b) without interruption, (c) without resuming cohabitation, and (d) with the intent that the separation be permanent. [4] Living apart usually entails living in separate residences, although this is not always necessary.[5] A court will ultimately look at all of the circumstances of your case, including “whether sexual relations resumed, whether consortium was permanent or intermittent, whether the parties shared familial and financial responsibilities, and whether the parties resumed the normal relationship as husband and wife with the intent to permanently reconcile.”[6]

Bed and Board Divorce

The two main differences between a bed and board divorce and an absolute divorce are (1) the effects of the divorce and (2) the grounds for the divorce. “In granting a divorce from bed and board, the court may decree that the parties shall be perpetually separated and protected in their persons and property. However, under a bed and board divorce decree, neither party can marry again during the life of the other.”[7]

You may prefer to seek a bed and board divorce if, for religious or philosophical reasons, you do not want an absolute divorce.[8] Alternatively, you may use this option for tax purposes, or until you can merge your bed and board divorce into an absolute divorce later (as discussed above).[9] However, you cannot merge a bed and board divorce into an absolute divorce if the cause for the absolute divorce was existing and known to you before the bed and board divorce decree was entered.[10] A bed and board divorce may be granted on any one of the following grounds:[11]

  1. For cruelty or reasonable apprehension of bodily harm. Cruelty grounds may be established by “any conduct that renders marital cohabitation unsafe or that involves danger to life, limb, or health.” This may include angry words, abusive language, and insults, especially if they lead to mental anguish, repeated neglect, and humiliation. While “[c]ruelty normally consists of successive acts . . . a single atrocious act would be sufficient . . . if [it] endangers life or is done with the intention to do serious bodily harm.” However, mere marital disharmony or denial of sexual intercourse is not enough alone to amount to cruelty.
  1. For willful desertion or abandonment. This requires both that (1) your spouse breaks off marital cohabitation with you and (2) your spouse actually intends to desert you. There is no period of time for desertion required for the divorce. Similarly, it is not necessary to voice any objection to your spouse’s desertion or to seek or offer reconciliation. However, separation by mutual consent will not constitute desertion; thus, if you and your spouse consent to separate, you will not have grounds for a bed and board divorce.

Where Do You Have to File?

It is important that you file for divorce in Virginia in the proper courthouse so that your case can be decided quickly and appropriately. In Virginia, the circuit courts are the starting places for divorce cases.[12] There are a few requirements you must follow:

  • At least one spouse must have lived in Virginia for six months before either spouse can file for divorce in the state.[13]
    • Members of the armed forces satisfy this requirement if they are stationed in Virginia for at least six months, including on a ship with a Virginia home port or on a military base within Virginia.[14]
    • Members of the armed forces currently stationed outside of the U.S. can also satisfy the requirement if they lived in Virginia for six months immediately before their foreign assignment.[15]
  • You can file in the circuit court located in the county in which either you or your spouse live.[16] Click here to find the circuit court for you.

It is strongly recommended to hire a lawyer to represent you because the rules of the circuit court can be complicated and the penalties for not following them can be serious.[17] Even if you and your spouse agree on what you want to happen, legal paperwork and a settlement agreement will still need to be drawn up, and a lawyer can ensure that this is done properly.[18]

You may call the clerk of the court you will file in to get help with forms and filing fees,[19] but an attorney can help you navigate all aspects of the system, stay ahead of deadlines, and protect all of your interests along the way. Contact information for the clerks can be found on the page for your respective courthouse.

What Procedures Do You Need to Follow?

Once you have determined which court you will file in, you need to (1) file a Bill of Complaint, (2) ensure that a copy of the complaint and a summons are served on your spouse, and (3) pay the filing fee.[20]

The complaint must include information about:[21]

  • The date and place of your marriage to your spouse;
  • Each spouse’s current living arrangements;
  • Each spouse’s military status;
  • Satisfaction of the residency requirements;
  • The grounds for divorce;
  • Satisfaction of the separation period (if applicable); and
  • The ages and living arrangements of any children of the marriage.

The summons is a “legal notice of the action” so that your spouse is aware of the divorce proceedings and has time to file his or her response.[22] A copy of the complaint also must be provided to your spouse so that he or she can see how you have met the grounds and other requirements for divorce. You are not allowed to serve these papers on your spouse; this is usually handled by a sheriff or a private process server.[23]

Current fees to file for divorce in Virginia, including getting the papers served by a sheriff, are generally less than $100.[24] Virginia’s court website also has a helpful filing fee calculator. If you do not have the money, the judge may grant a special request to proceed with your case without paying the fee, but this is not guaranteed.[25]

Conclusion

The process of selecting grounds for divorce and ultimately taking your case through to obtaining a final divorce decree can be daunting. If you get stuck you should contact an experienced attorney to assist you with the process as you file for divorce in Virginia.


[1] Peter Nash Swisher, Lawrence D. Diehl & James R. Cottrell, Family Law: Theory, Practice, and Forms, in 9 Virginia Practice Series § 8:1, at 201 (2014 ed. 2014) (emphasis added); cf. id. § 7:1, at 189 (contrasting an absolute divorce with a “bed and board divorce”, which is not a termination of the marriage, but rather a “permanent separation” in which “neither party could thereafter remarry” while the other was alive).

[2] Swisher et al., supra note 1, § 8:1, at 201.

[3] Va. Code Ann. § 20-91(A)(1), (3), (6), (9) (LEXIS through Ch. 4 of the 2016 Regular Session of the General Assembly); Swisher et al., supra note 1, § 8:3, at 203-14; Metropolitan Richmond Women’s Bar Association, Understanding Your Domestic Relations Rights in Virginia 5-8 (2010-2011 ed. 2011) [hereinafter MRWBA].

[4] See also David D. Meyer & Linda C. McLain, Chapter 8: Divorce, in Contemporary Family Law 501, 539 (4th ed. 2015) (emphasis added) (quoting Pearson v. Vanlowe, No. 0561-04-4, 2005 Va. App. LEXIS 91, at *10 (Va. Ct. App. Mar. 8, 2005)).

[5] See Meyer & McLain, supra note 4, at 538-39 (discussing states’ varying conclusions on whether spouses can live “separate and apart” while living in the same house); accord Meyer & McLain, supra note 4, at 537 (citing Wellner v. Wellner, 699 A.2d 1278, 1281 (Pa. Super. Ct. 1997) (defining “separate and apart” as the “[c]omplete cessation of any and all cohabitation, whether living in the same residence or not”)). Compare Meyer & McLain, supra note 4, at 539 (citing Bchara v. Bchara, 563 S.E.2d 398, 402 (Va. Ct. App. 2002) (holding that the parties had lived separate and apart after living in separate rooms and ceasing group activities and the sharing of money)), with Meyer & McLain, supra note 4, at 540 (citing Catalano v. Catalano, 2005 WL 1154251 (Va. Cir. Ct. 2005) (holding that the parties had not lived separate and apart, despite living in separate rooms and ceasing all intimate relations, because they continued to share some activities together as a family and hold themselves out as a couple)).

[6] Pearson, 2005 Va. App. LEXIS 91, at *11 (citing Jacobsen v. Jacobsen, 41 Va. App. 582, 590-91 (2003)).

[7] Swisher et. al., supra note 1, § 7:2, at 190.

[8] Id. § 7:1, at 190.

[9] Id.; see also MRWBA, supra note 3, at 7.

[10] Id. § 7:7, at 199-200.

[11] See Va. Code Ann. § 20-95 (LEXIS through Ch. 4 of the 2016 Regular Session of the General Assembly); Swisher et al., supra note 1, § 7:3, at 191-96.

[12] Va. Code Ann. § 20-96 (LEXIS through Ch. 4 of the 2016 Regular Session of the General Assembly); MRWBA, supra note 3, at 3. See generally Swisher et al., supra note 1, §§ 6:1-6:5, at 165-187 (elaborating on jurisdiction for bilateral, ex parte, and foreign divorces, the divisible divorce doctrine, and venue).

[13] Susan Bishop, The Divorce Process in Virginia – FAQs, DivorceNet, http://www.divorcenet.com/states/virginia/virginia_divorce_law, (last visited Mar. 20, 2016).

[14] Id.

[15] Id.

[16] MRWBA, supra note 3, at 3; Bishop, supra note 13.

[17] MRWBA, supra note 3, at 3.

[18] Bishop, supra note 13.

[19] MRWBA, supra note 3, at 3; Bishop, supra note 13.

[20] Id.

[21] Bishop, supra note 13.

[22] Bishop, supra note 13.

[23] Id.

[24] Id.

[25] MRWBA, supra note 3, at 4.

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