A Quick Guide to Virginia’s Contested Divorce Process

Couples who are unable to agree on issues such as child custody, alimony, or property division may need to go through the contested divorce process.

Last updated on March 18th, 2019

If you and your spouse are getting divorced in Virginia, and disagree on one or more issues of your divorce, then you will have to go through the contested divorce process.

Essentially, this means that a judge will have to decide on the important matters of your divorce, such as the division of property or how much alimony one spouse has to pay.

The Virginia contested divorce process can last anywhere from several months to several years, and can end up costing you a great deal of money.

Before you undergo a lengthy and expensive divorce, it is important for you to fully understand the Virginia contested divorce process.

What Does it Mean for a Divorce to be “Contested”?

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In Virginia, there are two types of divorce, contested and uncontested. An uncontested divorce occurs when all matters pertaining to a divorce are either settled prior to filing or agreed upon by all parties.

The main terms of any divorce include child custody, child support, spousal support, visitation, and property division. Both you and your spouse will address these issues in a written separation agreement.

If both you and your spouse mutually agree to all the terms in your separation agreement then your divorce will be uncontested.

On the other hand, if you and your spouse disagree on even one of these issues, your divorce automatically becomes contested. This means that you must appear in front of a judge who will attempt to resolve the matter.

For example, if one spouse does not want the marriage to end, then the divorce may become contested. Similarly, if you and your spouse can’t come to an agreement about child custody, visitation, or property division, then your divorce may also become constested.

Am I Eligible for a Divorce in Virginia?

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Before you can successfully begin the Virginia contested divorce process, you should make sure you’re eligible for a divorce in the first place.

There are three general requirements you need to meet to file for divorce in Virginia:

In regards to the final point, there are actually two general types of divorce in Virginia: fault-based and no-fault.

In a fault-base divorce, you are basing your divorce on one of the specific “faults” outlined in the Virginia Code, such as adultery or cruelty. On the other hand, in a no-fault divorce, your reason is basically “we don’t want to be married anymore.”

In order to be eligible for a contested divorce in Virginia, you must also meet the requirements for either a fault-based or no-fault divorce.

The 9 Steps of the Virginia Contested Divorce Process

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Once you’re sure that you meet the requirements for getting a divorce in Virginia, you can begin the process of filing.

As stated above, if you and your spouse disagree about one or more issues in your divorce, the divorce automatically becomes contested. This means that you’ll have to appear in front of a judge who will then resolve the issue.

In most instances, there are ten steps that occur during the Virginia contested divorce process.

Step 1 – File a complaint

The first step in the Virginia contested divorce process is to file a complaint. The complaint must state the grounds for your divorce, as well as a few additional details about your case.

After you file the complaint with your local court, you must successfully serve the complaint to your spouse. Make sure to collect proof that they were properly and legally served.

Step 2 – Your spouse files an answer

After you have served your spouse with the complaint, they have 21 days to file an answer. When your spouse files an answer to the complaint, he or she has the opportunity to admit or deny the allegations set forth in the complaint.

At this point, your spouse can also file a counterclaim against you.

For example, if you’re disagreeing over visitation they may suggest totally different schedule than the one you submitted.

Step 3 – One spouse requests Pendente Lite Relief

Because the contested divorce process lasts a minimum of several months, Virginia allows the court to temporarily decide on the issues that would normally be addressed in the trial.

A pendente lite order is where the court provides a temporary decision certain issues that require immediate attention.

The court can issue a pendente lite order that provides temporary relief for many issues, including:

  • Issuing an order that compels one spouse to pay the other spouse alimony.
  • Issuing an order that compels one spouse to pay the other spouse’s healthcare costs.
  • Issuing an order compelling one spouse to continue paying jointly incurred debts.
  • Issuing an order preventing either spouse from imposing any restraint on the personal liberty of the other spouse (i.e. restricting the use of a shared vehicle).
  • Issuing an order that provides child custody of any minor children to one of the two spouses.
  • Issuing an order that compels one spouse to pay child support costs to the other spouse for any minor children.
  • Issuing an order that provides the exclusive use and possession of the family residence during the suit to one of the spouses.

Step 4 – Pretrial motions are filed

A motion is simply when one party asks the court to do something or make the opposing party do something.

During the pretrial period of the Virginia contested divorce process, either spouse can file motions making various requests. Common pretrial motions include continuances, motions to compel discovery, and motions for pendente lite relief.

Basically, this is the period where each side is gathering evidence and preparing their legal strategy.

Step 5 – Experts are asked to testify

During the Virginia contested divorce process, it may be beneficial to bring in experts to testify at trial on one of the spouse’s behalf. Experts can be used to testify on both financial and medical matters.

Experts are often used to evaluate any financial assets or property owned by the couple. For example, you could have someone testify to the fair market value of your house.

Experts can also be used to evaluate the medical and mental status of both parties. Most importantly, experts are often used to testify on each spouses earning capacity.

While experts can be expensive, the determination of each spouse’s earning capacity is very important when determining alimony and spousal support.

Step 6 – Discovery Process

Discovery is one of the most crucial periods of the Virginia contested divorce process.

Discovery is the period of time where both parties engage in fact finding and uncover evidence in order to prepare for trial.

There are four types of discovery tools that are commonly used in a divorce proceeding: interrogatories, depositions, subpoenas, and requests for production of documents.

An interrogatory is a written document containing questions that must be answered by the party of interest. These questions are prepared by an attorney and must be answered truthfully. Interrogatories are completed under oath and must be returned to the parties attorney within 21 days.

Depositions are oral interviews of parties of interest in the case. Depositions are taken under oath and in the presence of a court reporter. You may have your own attorney present for depositions.

Subpoenas are court orders requested by you or your spouse that require an individual to appear at the trial to testify.

Finally, requests for production of documents is where the court orders one or more parties to turn over documents to the opposing party. This is a very broad request that can include everything from emails to bank statements.

In the event that you are told to turn over documents you will have 21 days to comply.

Step 7 – Pre-trial conference

In some instances, parties are required to attend a pretrial conference. The pretrial conference primarily addresses any issues that could be problematic at trial.

However, in the event both parties come to an agreement over the contested issue, the pretrial conference could possibly lead to a settlement. This means that you can resolve the issue before it goes to trial.

Step 8 – Trial

The pivotal event in any contested divorce is the trial. After each party completes their discovery, they will request a trial date.

The court will usually schedule this trial between six and eight months after you make the request. The trial itself will normally only last one or two days, and will proceed much like a normal civil trial.

Each party will make an opening and closing statement, and bring forth evidence and witnesses who can testify on their account.

Step 9 – The divorce order

The final stage of the contested divorce process is for the judge to make the decision on the outcome of the case. After the commencement of the trial, the judge will review the evidence and issue a divorce order.

Essentially, this order is the judge’s final ruling on the case.

Usually, the judge will issue his or her order within a few weeks or months of your trial. For less complex matters, they may even do so at the trial itself.

Conclusion

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If you and your spouse are unable to come to an agreement on one of the major issues of the divorce, then you will likely have to undergo the Virginia contested divorce process.

The Virginia contested divorce process can be a long, tiresome, and expensive process. For this reason, having an experienced family law attorney by your side is highly recommended.

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