5 Steps to a Successful Virginia Divorce

Divorce in Virginia can be complicated for everyone involved. Consider the 5 steps listed below to help you have a successful Virginia divorce.

Last updated on October 22nd, 2018

Steps to a Successful Virginia Divorce

Divorce can be a long, expensive, and an emotionally draining experience. However, there are certain steps that you can take to ensure a successful Virginia divorce.

There are two types of divorce in Virginia: uncontested and contested divorce. Because there are two types of divorce, each one requires different steps ensure a successful Virginia divorce.

Part 1 of this article will cover uncontested divorce and Part 2 will cover contested divorce.

We’ve broken each divorce type into a 5-step process.

By following the steps listed below you will increase your chances of obtaining a successful Virginia divorce.

Part 1: Uncontested Divorce

Uncontested divorce occurs when you and your spouse mutually agree to end the marriage. To have an uncontested divorce, both you and your spouse have to agree on all the key aspects of divorce.

An uncontested divorce will usually be based on living apart from each other. As a general rule, if you allege fault in a divorce, the other spouse will defend himself/ herself and you will then have a contested divorce.

(If you and your spouse do not agree to all aspects of divorce, proceed to Part 2 of the article.)

Because you and your spouse agree on all the terms of divorce, you can save time and money by avoiding divorce proceedings. One of the main benefits of an uncontested divorce is that it can be performed pro se. This means that it can be performed without the help of an attorney.

However, to ensure a successful Virginia divorce hiring an experienced family law attorney is recommended. If your divorce is uncontested, there are generally five steps to a successful Virginia divorce.

Step 1 to a Successful Virginia Divorce: Meet the Eligibility Requirements

The first step to any successful Virginia divorce is meeting the statutory eligibility requirements. In order to be eligible for divorce in Virginia, the Commonwealth must have jurisdiction over your divorce proceedings. [1]

For Virginia to have jurisdiction over your divorce, you or your spouse must have been an actual bona fide resident and domiciliary of Virginia for at least six months. [2] This means you have lived in Virginia and considered it your primary residence for at least six months.

If you or your spouse have not lived continuously in the state of Virginia for at least six months, you will not be eligible to file for divorce in Virginia. [3] However, only one of you needs to have lived in Virginia to qualify.

Step 2 to a Successful Virginia Divorce: Establish Separate Addresses

The second step in a successful Virginia divorce is for you and your spouse to establish separate addresses. To be eligible for divorce in Virginia both you and your spouse must have lived separate and apart for at least one year prior to filing for divorce. [4]

This means that both you and your spouse must have lived at separate residences for a minimum of one year to satisfy this requirement. [5] The point of the one year separation is that it provides the court evidence that either you or your spouse wish for the marriage to end.

It is important to remember that the separation must be continuous and without interruption throughout the entire year. [6] If your spouse moves back in with you during the one year period then you will not be able to satisfy this requirement.

However, if there are no children from the marriage, the “separate and apart” requirement is only six months, instead of one year.

Step 3 to a Successful Virginia Divorce: Determine Child Custody

If you have no children skip to step four. The third step to a successful Virginia divorce is to determine child custody. This will involve determining which parent will have primary custody of the children. The parent with primary custody is where the child will live most of the time.

Parenting Plans

To have a successful Virginia divorce it is important that both parents get to see the children and are involved in their lives. Creating a parenting plan with your spouse helps to alleviate these concerns.

A parenting plan is a written document that helps divorcing parents understand their future child related responsibilities. A parenting plan sets forth a visitation schedule, determines how the parents plan to divide future child related expenses, and helps divorcing parents avoid future conflict by making sure both parents are involved in the child’s life.

If you cannot reach an agreement on a parenting plan, by definition, you are involved in a contested divorce and should skip to Part 2.

Visitation Schedules

One of the most crucial elements of the parenting plan is a fair visitation schedule. Creating a fair visitation schedule with your spouse helps alleviate future conflict and helps increase your chance of having a successful Virginia divorce.

A visitation schedule includes what days of the week you get to see your child. [7]  Additionally, a visitation schedule contains which parent gets the child on holidays.

Children Expenses

Finally, you want to determine how future child related expenses will be addressed with your spouse. This includes what parent will pay for the child’s medical bills, school expenses, etc.

By coming to an agreement with your spouse, you can avoid a lengthy and expensive child custody battle.

Step 4 to a Successful Virginia Divorce: Divide Property

The fourth step to a successful Virginia divorce is to divide all property between you and your spouse. All marital or jointly owned property must be divided between you and your spouse.

All separately owned property is yours to keep.

Property division involves dividing up all financial assets, income, and tangible property. Property division is a difficult and time consuming process. However, Virginia has passed equitable distribution laws that ensure a fair split of marital property. [8]

To ensure that property division is equitable, both you and your spouse will have to carefully classify and value all jointly owned property. [9]

It is important to note that debts can also be considered “marital property”. Don’t forget to divide up the family’s debts along with the other property.

Step 5 to a Successful Virginia Divorce: Create a Separation Agreement

The final step to a successful Virginia divorce is to create a comprehensive separation agreement. Also called a property settlement agreement, a separation agreement is a contract agreed upon by the divorcing couple that addresses the many legal issues that accompany divorce. [10]

The separation agreement will include how you and your spouse plan to address child custody, division of property, spousal support, and many other divorce related issues. Divorcing couples often include their parenting plans and visitation schedules in the separation agreement.

To ensure a successful Virginia divorce the separation agreement must be comprehensive. This means that the document should address all the major issues of divorce. Once the separation agreement is complete, a judge will ensure that the separation agreement is fair to both parties.

Part 2: Contested Divorce

If you and your spouse disagree on one or more of issues of divorce then you will likely have to participate in a contested divorce. A contested divorce is an adversarial process where a judge decides each issue of the divorce, instead of the divorcing couple.

A contested divorce is more expensive than an uncontested divorce. It also requires both you and your spouse to participate in a trial. A contested divorce can be difficult, but there are certain steps you can take to ensure a successful Virginia divorce.

Step 1 to a Successful Virginia Divorce: Establish Grounds for Divorce

If your divorce is contested, the first step to a successful Virginia divorce is to allege grounds for divorce. Unlike uncontested divorce, you and your spouse might not be required to live at separate addresses for one year (or six months if no children) prior to filing for divorce.

In a contested divorce you also allege grounds for divorce. The grounds might be living separate and apart, as described above, or, they could be based on fault. If you sue on fault-based grounds for divorce, you can file for divorce immediately. Fault-based grounds for divorce include adultery, conviction of a felony by your spouse, and spousal abuse.  [11]

By stating fault-based grounds for divorce you may be able to avoid the one-year separation requirement and might be entitled to a slightly larger portion of marital property.

It should be noted that fault-based divorces tend to be longer, more expensive,  and more emotionally charged than divorces based solely on living separate and apart. You should also keep in mind that each element of fault must be proved to achieve a fault-based divorce.

If you lack the required proof of fault, you may want to consider a divorce based on separation.

Step 2 to a Successful Virginia Divorce: Request Pendente Lite Relief

The second step to a successful Virginia divorce is to request pendente lite relief. The court will issue a temporary order to decide certain issues while the litigation is ongoing. [12]

Because contested divorce is an adversarial process, the months leading up to your trial can be difficult for both you and your spouse. There can be many disagreements that arise before your actual trial.

A pendente lite order helps alleviate these concerns by addressing issues on a temporary basis, such as: living arrangements, child custody, spousal support, and many other issues. [13]

Step 3 to a Successful Virginia Divorce: Complete Pretrial Procedures

If there is a contested proceeding, the third step to a successful Virginia divorce is to address all pretrial matters. Because there is a trial involved in a contested divorce, hiring an attorney is highly recommended.

Serve your Spouse

The first pretrial matter that needs to be addressed is issuing a complaint. The complaint will contain the grounds for divorce. Your spouse must be served with the complaint in order to start the process. Your spouse will then have the opportunity to file an answer to the complaint.

Discovery Process

Next you will have to engage in a lengthy discovery process to prepare for trial. The discovery process is simply a fact finding mission where you attempt to discover evidence that can be used at trial.

There are numerous discovery tools at your disposal such as: interrogatories, depositions, subpoenas, and requests for production of documents. The discovery process is crucial to success at trial. By uncovering evidence that can be used to support your case, you can help ensure a successful Virginia divorce.

Pre-trial Conference

Once discovery is complete and all pretrial motions are filed, both parties will meet for a pretrial conference. In some instances both sides can reach a settlement. However, this conference is primarily used to address any lingering issues before trial.

Step 4 to a Successful Virginia Divorce: Attend Your Trial

The fourth step to a successful divorce is to attend your trial. Divorce proceedings can last one or two days, sometimes more. The divorce proceeding is much like a criminal trial.

During the proceedings witnesses will be called to testify and each side will have the opportunity to make their argument. The trial will usually be held somewhere between six to eight months after you file for divorce.

Step 5 to a Successful Virginia Divorce: Judge Issues a Divorce Order

The final step to a successful Virginia divorce is for the judge to make a ruling on your case. This is commonly called a divorce order. The judge will usually make a ruling within a few weeks.

However, in complex cases it could take several months for a judge to make his or her decision. Once the judge makes a ruling you are officially divorced.

Conclusion

The divorce process can be difficult for anyone. However, by following the steps mentioned above you can alleviate stress and help ensure a successful Virginia divorce.

If want an uncontested divorce, then you can best ensure a successful Virginia divorce by discussing all issues with your spouse, creating a comprehensive separation agreement, and choosing divorce based on living separate and a. However, if you and your spouse cannot agree then you will likely have to undergo the contested divorce process.

While some stages of divorce can be handled pro se, hiring an experienced and competent family law attorney is recommended. Ultimately, having an experienced attorney by your side can best serve to protect the things most important to you.


[1] Va. Code § 20-97

[2] Id.

[3] Id.

[4] Va. Code § 20-91

[5] Id.

[6] Id.

[7] Va. Code § 20-124.2

[8] Va. Code § 20-107.3

[9] Id.

[10] Va. Code § 8.01-581.25

[11] Va. Code § 20-91

[12] Va. Code § 20-103

[13] Id.

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