The Virginia Contested Divorce Process

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

The Virginia Contested Divorce Process

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

This means that you and your spouse will require court intervention to decide the disputed issues of the divorce.

The Virginia contested divorce process can last anywhere from several months to over a year. It can cost several thousand dollars in court costs and legal fees.

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?

In Virginia there are two types of divorce, contested and uncontested. Uncontested divorce in Virginia occurs when both you and your spouse mutually agree to end the marriage. If both you and your spouse mutually agree to all the terms of the divorce then your divorce is uncontested.

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 agree to all these issues and have a comprehensive separation agreement, you will likely qualify for uncontested divorce in Virginia.

However, if you and your spouse are unable to agree on all the issues in a separation agreement, you will likely have to undergo the Virginia contested divorce process.

Contested divorce occurs when the court is forced to decide on disputed issues between the divorcing couple. Contested divorce in Virginia can occur for multiple reasons.

If one spouse does not want the marriage to end, then the divorce could be contested.

Additionally, if you and your spouse cannot agree upon child custody, child support, spousal support, visitation, or property division then your divorce would be contested.

Am I eligible for a divorce in Virginia?

Before you can successfully begin the Virginia contested divorce process, you must first meet several eligibility requirements.

First, Virginia must have jurisdiction over your divorce proceedings.

Both you or your spouse must have been an actual bona fide resident and domiciliary of the Commonwealth of Virginia for at least six months. [1] Unless either you or your spouse has lived continuously within the state of Virginia for at least six months, you will not be able to file for divorce in Virginia. [2]

Second, both you and your spouse must have lived separate and apart for at least one year in order to begin the Virginia contested divorce process. [3] Both you and your spouse must have lived at separate residences for a minimum of one year in order to satisfy this requirement. [4]

The separation must be continuous and without interruption throughout the entire year. [5] This means that neither you or your spouse can live at the same residence for a minimum of one year. [6] The rationale behind the one year separation is that it provides the court evidence that either you or your spouse wish for the marriage to end.

Finally, in order to be eligible to begin the Virginia contested divorce process, there has to be grounds for the divorce. In Virginia there are two types of grounds for divorce: no-fault divorce and fault divorce.

A no-fault divorce is when neither spouse has committed any wrongdoing.

A fault divorce is where one spouse has committed an act that justifies the dissolution of the bounds of matrimony. [7] This can include one spouse committing adultery, an act of cruelty, or if one spouse is convicted of a felony. [8]

The 10 steps of the Virginia Contested Divorce Process

If you and your spouse disagree about one or more issues of the divorce and are eligible to begin the Virginia contested divorce process, then you will have to undergo a divorce trial. Divorce proceedings can take several months to a year to complete.

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

1. A complaint is filed

The first step in the Virginia contested divorce process is to file a complaint. The complaint must state the grounds for divorce. After the complaint is filed with your local court, the complaint must be served upon your spouse.

2. Your spouse files an answer

After you have served your spouse with the complaint, the defendant has 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 in the Virginia contested divorce process, the spouse filing the answer can also file a counterclaim. A counterclaim is when the defendant rebuts the plaintiff’s claim and asserts allegations against the plaintiff.

3. One spouse requests Pendente Lite Relief

Because the Virginia contested divorce process lasts a minimum of several months, Virginia allows the court to temporarily decide on the issues that will be addressed in trial. A pendente lite order is where the court provides a temporary decision on issues that will later be addressed at trial. [9]

Either party of the divorce can request pendente lite relief. [10] Pendente lite relief requires a brief hearing where both parties of the divorce will be able to present their case about the disputed issues.

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;
  • Allowing the spouses to continue the divorce proceedings;
  • Issuing an order preventing either spouse from imposing any restraint on the personal liberty of the other spouse;
  • 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. [11]

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.

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 valuate any financial assets or property owned by the couple. Experts can also be used to evaluate the medical and mental status of both parties. Most importantly, experts can be used to testify on the spouses earning capacity.

While experts can be expensive, the determination of a spouses earning capacity is very important when determining alimony and spousal support.

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.

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 are able to come to an agreement, the pretrial conference could possibly lead to a settlement.

8. Trial

The pivotal event in any Virginia contested divorce process is the trial. After the two parties have completed discovery, the parties request a trial date. The trial will usually be held six to eight months after the request is made.

In most instances, divorce proceedings last one or two days. Divorce proceedings operate much like a normal criminal or civil trial. Both parties have the opportunity to make opening and closing statements and bring forth witnesses to testify on their account.

9. The Divorce order

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

The divorce order is a judge issued ruling on the outcome of the case. Like everything else in the Virginia contested divorce process, it will take a long time for the judge to reach his or her decision.

Usually, the judge will make his or her decision within a few weeks. However, in complicated cases the judge may take several months to issue a ruling.

The judge’s final decision will rule on property division, child custody, child support, spousal support, visitation, and any other issues that were addressed at trial.

10. Appeal

If you are unhappy with the result of your divorce trial, then your fight may not be over. If you or your attorney believe that a legal error has been committed then you may be able to appeal the judge’s ruling.

An appeal is simply a legal process where a higher court reviews the decision of a lower court. It is important to discuss whether or not you are eligible for an appeal with an experienced family law attorney.

Conclusion

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.

Having an experienced family law attorney by your side is highly recommended. Ultimately, having an experienced family law attorney by your side is the best way to ensure a successful outcome in the Virginia contested divorce process.


[1] Va. Code § 20-97

[2] Id.

[3] Va. Code § 20-91

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Va. Code § 20-103

[10] Id.

[11] Id.

Need an attorney?

Our articles provide general information about all of our practice areas. If you're looking for legal counsel specific to your situation, you'll need to talk to a lawyer.

Share This