As a general rule, an uncontested divorce in Virginia is quicker, easier and less expensive than a contested divorce.
For this reason, spouses usually prefer to have an uncontested divorce. But not every divorce qualifies as “uncontested” in the Commonwealth. There are certain requirements you and your spouse must meet to have an uncontested divorce.
Is Your Divorce Uncontested?
In Virginia, your divorce qualifies as uncontested if both spouses agree on all issues of the divorce. Couples that agree on all issues of the divorce will have already decided on alimony and how their property (real estate, personal property, assets and debts) will be divided among the two.
If the couple has minor children, they must also agree on child support, visitation, custody and insurance coverage of children for it to be an uncontested divorce.
Eligibility for Uncontested Divorce in Virginia
Even if you and your spouse agree on all issues of the divorce, you are not automatically eligible for an uncontested divorce in Virginia.
If the marriage does not have minor children, you must be separated for at least 6 months before you can qualify for uncontested divorce. If there are minor children, you must have been separated for 1 year before filing.
In addition, the spouse filing for divorce must have been a resident of Virginia for at least 6 months at the date of filing. The residency requirement must be shown by credible testimony and can be corroborated by a third-party witness.
The law mandates that you and your spouse must be living separate for at least 6 months (or one year if there are children). Even one night spent together in that 6 months or one year period technically disqualifies you for uncontested divorce in Virginia.
To prove physical separation of your living situation, you will likely need a witness to testify to your separate living situations.
Only the spouse filing must be able to prove residency for at least 6 months in the district where they are filing for divorce.
It is not required that your spouse live in the same state, but if your spouse does live in another state you must also follow that state’s procedures for serving him or her with papers.
To prove your residency, you may show the Circuit Court Clerk’s office your voter registration, bank account address, or by merely submitting a personal sworn complaint.
For military on duty in Virginia, they are eligible to file for divorce in Virginia after 6 months.
Grounds of Separation
In Virginia, you must have a “legal reason” for your divorce. This legal reason is called the “grounds of separation“.
For uncontested divorces, there is not typically a ground of separation and instead it is a “no-fault” divorce. Essentially, the legal reason is “we don’t want to be married any more,” which carries its own separate restrictions as “no-fault.”
Annulment and Separation
These two terms are thrown around a lot in divorce lingo, but they are not the same thing as a divorce.
In Virginia, separation occurs before the divorce. The 6 months or 1 year period you must live apart from your spouse before filing for an uncontested divorce is the period of separation.
Annulment is similar to a divorce in that it legally ends a marriage, but it is not the same as a divorce. An annulment decree makes the marriage “void,” in other words, it invalidates the marriage and acts as if it never happened.
An annulment is not the same as an uncontested divorce, even if both spouses are in agreement about wanting an annulment.
Will I Need To Go To Court?
Some uncontested divorces in Virginia will go before a judge in Circuit Court. Others will be heard by a commissioner, or heard by deposition or affidavit.
There are pros and cons to each hearing type. For those parties who wish to avoid having a formal hearing, they should request a hearing by deposition or affidavit. This method involves submitting signed and sworn documents to the court, as opposed to pleading your cases before a judge or commissioner.
The parties determine how they want the case heard, either by judge, commissioner, deposition, or affidavit. For each method, there are separate filing requirements. Additionally, each method takes a different amount of time to complete.
For an example of the filing requirements for each method, check out this packet from Virginia Beach.
Any member of the public has free access to the forms needed to file for divorce in Virginia, but there are filing fees for each of the forms. It is strongly suggested that you hire a lawyer for your uncontested divorce.
The price of hiring a lawyer for an uncontested divorce is generally not that much higher than the pro se filing fees. For a few more dollars, you can have the piece of mind your case and paperwork are being handled by an experienced attorney.
Even if your divorce is not hostile, it is still strongly encouraged that each spouse retain their own divorce attorney.