Last updated on February 18th, 2019
The Virginia divorce process can be confusing to navigate. Before diving into the details, you should first understand the basics of what you’re getting into.
In this guide, we’ll provide a quick, general overview of how the divorce process works in Virginia, as well as show how each of the individual types of divorce differ from one another.
Types of Divorce
There are two types of divorce under Virginia law: divorce from bond of matrimony, and divorce from bed and board.
A divorce from the bond of matrimony is the “normal” form of divorce. This type dissolves the marriage, and completely releases both parties from their matrimonial duties.
On the other hand, a divorce from bed and board is a partial divorce, where each party is legally separated, but still married on paper.
Choosing which type of divorce you want is based on your own personal beliefs and situation, which may prohibit you from getting a full divorce. Essentially, however, both types of divorce lead to the same thing: the dissolving of the marriage.
Differences Between Virginia’s Divorce Types
The main difference between the two is that divorce from bed and board is like a shortcut to a normal divorce. All of the paperwork and bargaining happens early, so when the actual divorce deadline happens each party can simply file the paperwork and be done with the matter.
The process for each type of divorce is essentially the same. Further, it’s relatively easy to alter a divorce from bed and board into a “normal” divorce after one year of legal separation.
Once you’ve decided whether you want a legal divorce or a divorce from bed and board, the next step is figuring out your grounds for separation. This process basically boils down to one central question: was anyone legally “at fault” for the divorce?
Grounds for Separation: Fault vs. No-Fault
As a holdover of older laws, every divorce in Virginia has to center on some core dispute. This dispute can be as simple as a disagreement over finances, to as complicated as a cheating spouse. These disputes are known as “grounds for separation.”
The Virginia Code separates grounds for separation into two categories: fault and no-fault.
To summarize the difference, fault-based divorces depend on a list of reasons that are specifically outlined in the Virginia Code. These reasons include things such adultery or abuse.
No-fault divorces, on the other hand, occur due to disagreements where neither party is legally at fault under the Code. These types of divorces aren’t based on one specific reason, but, rather, come out of a period of separation between the spouses.
As mentioned, fault-based divorces occur when one spouse performs one or more of the “faults” listed in the Virginia Code. Specifically, Virginia residents can file for fault-based divorces in cases of adultery, felony conviction, abuse/cruelty, or abandonment.
For cases of adultery, or if one of the spouses commits a felony, there is no waiting period for a fault-based divorce. You may file for divorce as soon as you feel ready. For cruelty, or any of the other reasons listed, there is a one-year waiting period before either party can file for divorce.
However, you may bypass this waiting period using the shortcut we mentioned earlier: the divorce from bed and board.
In this case, you’ll be legally separated while you wait out this one-year timer. During this period, you can finalize all divorce proceedings and agreements, and simply sign the divorce papers on the final day to finish the matter.
In this way, you may file for a fault-based divorce from bed and board for either of the following reasons:
- Cruelty, or reasonably apprehension of bodily hurt (abuse).
- Willful desertion or abandonment (as defined specifically in the code).
On the other hand, in a no-fault divorce neither party has to prove that the other spouse did something wrong. As stated, this type of divorce is based primarily on the spouses living apart for a set amount of time.
The main benefit of a no-fault divorce is that all issues are taken care of before the divorce proceeding begins, such as property and custody. This agreement is called a separation agreement.
The Virginia Code specifically lays out the rules for this type of divorce in its section on divorces from bond of matrimony. To paraphrase this section: if the couple has no children, they must separate for six months before filing for a no-fault divorce. The law bumps up this time frame to one year if children are involved.
After this waiting period ends, you may file for a no-fault divorce at your local courthouse.
Contested or Uncontested?
While it may sound obvious, no-fault divorces often go quicker than fault-based divorces since the couple has fewer things to argue over. This is because each side can quickly settle on a separation agreement, which will go into effect as soon as they legally separate.
However, complications still frequently arise, even in no-fault divorces.
If either party disagrees with something in the separation agreement, the divorce becomes “contested.” This is often where having a good divorce lawyer becomes a necessity, and why contested divorces often become drawn-out and costly affairs.
Conversely, an uncontested divorce occurs when the parties agree on all relevant issues pertaining to the divorce. Specifically, in an uncontested divorce, certain issues do not need to be dealt with in court, usually because of a property settlement agreement or previous court decision. These issues include matters of fault, alimony, property division, child custody, and child support.
How These Processes Differ
Whether your divorce is contested or uncontested will have a huge impact on the divorce process. For this reason, we’ve broken up the process into two separate articles:
When combined with the fault/no-fault distinction from earlier, we arrive at four main types of divorce in Virginia:
|Contested||Contested Fault-Based Divorce||Contested No-Fault Divorce|
|Uncontested||Uncontested Fault-Based Divorce||Uncontested No-Fault Divorce|
Each of these types of divorce comes with different requirements, risks, and benefits, which you’ll want to talk over with your lawyer.
A contested fault-based divorce, for instance, would take the most time to settle, while an uncontested no-fault divorce could end in a separation agreement rather quickly. Likewise, an uncontested fault-based divorce (where one partner is wrong, but the other doesn’t want to fight about it) also has different rules than a contested, no-fault divorce (where the partners are already separated, but disagree on how to divide things).
In order to give you one example of how a divorce might play out in court, we’ll outline a sample of the uncontested divorce process below. The steps for the other types are generally similar, but can vary slightly depending on the specifics of your relationship and case.
The 6 Steps to an Uncontested Divorce in Virginia
Step 1: Residency Requirement
The first step in the divorce process is actually rather simple. In order to file for an uncontested divorce in Virginia, you need to be a Virginia resident. For this reason, the court requires proof that the spouse filing for divorce has lived in Virginia for at least six months prior to the divorce. You may do so at your local Circuit Court.
Once you’ve established your residency, you can begin filing for divorce in the same Circuit Court you originally sent your proof to.
Step 2: Determine Your Eligibility for an Uncontested Divorce in Virginia
In order to file for an uncontested divorce, both spouses must agree on every aspect of the divorce. This can range from child custody and spousal support to who gets to keep the family home.
However, simply agreeing on certain issues doesn’t automatically qualify you for an uncontested divorce.
Uncontested divorces are largely based on no-fault grounds or separation. For this reason, you should check that you actually qualify for a no-fault divorce. If you have children, for example, you must live separate and apart from your spouse for more than one year. Alternatively, if you don’t have any common children, you only need to live separate for six months.
In both cases, however, you need to have a separation agreement already in place before filing for divorce. A separation agreement shows the court that you agree with your spouse on all issues pertaining to the divorce. As mentioned earlier, the lack of, or a disagreement about, a separation agreement makes a divorce contested.
Step 3: Requirements to Have Your Divorce Heard
Once you’ve determined that you satisfy the requirements in Step 1 and Step 2, you should submit a “bill of complaint” to the Circuit Court. This is a document which includes information about all of the following:
- Current residence information for both parties.
- The date and place of your original marriage.
- The names and dates of birth for all minor children (if applicable).
- A written statement that each party is 18 years or older, and of sound mind.
- Proof of any relevant military status (if applicable).
- A written statement that each party is not incarcerated.
In addition to the bill of complaint, you must also fill out and submit Form VS-4 to the clerk of your local court. This form requests similar information to what you put on your bill of complaint. You can submit the VS-4 at any point before your formal hearing.
Once you’ve filed both forms, the Circuit Court clerk will assign you a case number. This number identifies your case to the court, and has to appear on all subsequent divorce documents.
Step 4: Provide Notice to the Other Party
Next, you must provide notice of the divorce to your spouse. This is done with a “service of process.” Service of process is a legal term that means you gave official notice of legal proceedings to the other person. Whenever you hear about someone “serving” another person legal documents, this is what they mean.
In Virginia, you need to provide this notice in a very specific order and manner. You can’t simply mail your spouse a letter, or leave a sticky note on their fridge.
Generally speaking, a proper notice will include a copy of the complaint, an official court summons, and any other relevant documents you’ve filed with the court. You can serve your spouse these documents this in any number of ways. The most common way of “serving” someone is to simply ask the sheriff’s office, or an impartial third party, to hand over the papers for you. Do note, however, that they might charge you a fee for doing so.
After receiving these documents, your spouse has 21 days to file an answer with the Circuit Court. If they fail to do so, they waive their service of process. This means that by failing to respond or sign, they automatically consent to the divorce. In cases where this happens, the court will often simply grant the divorce by default.
Lastly, make sure to keep a record of how you’ve served your spouse, as you’ll need to prove that they were served properly in court.
Step 5: Decide on How You Want Your Divorce Heard
Once you’ve served your spouse, the next step is to determine how you want your divorce heard. There are two general options at this step. First, you can ask for an oral hearing with a judge or commissioner. Second, you can keep the divorce out of the courthouse by using deposition or affidavit.
We’ll cover each option below. Do note, however, that this step is where giving notice to the other party is important. The non-petitioning spouse has a right to be present when these statements are taken. This means they must have notice of what you’re doing, so that they can either (1) attend the hearing or deposition, or (2) waive their right to be present.
Option 1: Oral Hearing with Judge or Commissioner
As stated, after your spouse files their answer you can decide on whether or not you want an oral hearing. If you choose this route, you can then decide whether this hearing will happen in front of a judge or a commissioner.
The benefit of having a commissioner hear your divorce first is that a judge can hear any post-trial motions you may submit. Essentially, it allows for a second pair of eyes to look over your divorce after the fact.
If you decide that you would like a judge to hear your case, you must file what is known as a Hearing Request Form. A sample copy of a Hearing Request Form for the Circuit Court of the City of Virginia Beach can be found here.
In addition to a version of this Hearing Request form (depending on where you live in Virginia), you must also submit all of the following:
- At least two copies of a Final Decree of Divorce.
- The Original Separation Agreement (as required under no-fault grounds).
- Proof of Service of the Bill of Complaint, or proof of waiver of service.
- The original completed VS-4 Form.
- A self addressed, stamped envelope (if proceeding without an attorney).
- An order for restoration of your former name (if you wish to change back to your last name before marriage).
- Anything else that may pertain to the jurisdiction that you are in, such as if you are basing evidence on witness testimony (like a friend who witnessed the reasons why you are getting a divorce).
Once you submit these forms to the court, they will mail you a scheduling notice that tells you if they’ve approved your hearing request. If you fail to file the correct forms, or submit an incomplete form, they will instead send you a rejection notice, as well as details for how you can correct the issue.
Once you’ve received your scheduling notice for your scheduled hearing, the next step is to appear at the hearing.
While at the hearing, you have to provide evidence for all of the allegations you made in your bill of complaint. This is also when you’ll bring any witnesses you deem relevant.
Option 2: Divorce by Deposition or Affidavit
If you instead wish to avoid a formal hearing before a judge or commissioner, you also have the option of using a deposition or affidavit. This is very helpful when one of the parties in the divorce proceeding cannot make it to a hearing, or if you would like a quicker divorce.
If all issues in your divorce are already fully settled, or one spouse doesn’t want to participate in the divorce process, an uncontested, no-fault divorce can take place through a deposition or affidavits. Essentially, this means that instead of actually showing up in court, you only need to submit some documents or recordings to the Clerk of the Court.
Depositions, for example, can take place at your attorney’s office. A deposition is sworn testimony taken outside of court. Essentially, instead of submitting a solely written reason for the divorce (the affidavit), you’re recording the matter while under oath. Once you finish these depositions, you can file them with the Clerk’s Office of your local Circuit Court.
The process of divorce by affidavit is similar to a divorce by deposition. An affidavit is a sworn written statement that is used as evidence by a court. So, instead of having a deposition taken inside of an attorney’s office, you can simply write out your own sworn statement and submit it to the court. In order for this affidavit to count, you have to legally affirm the information and have it notarized.
Step 6: The Result of your Divorce Proceeding
Once you’ve completed the above steps, all you need to do is wait for the court to enter a ruling. The judge may rule orally at the end of your hearing, or the judge may take the matter under further advisement.
Generally, a judge will issue a verdict on your divorce during the hearing. The judge will issue what is called a Final Decree of Divorce, which formally dissolves your marriage. Once the judge has signed the Final Decree of Divorce, the court will mail you a certified copy of the Final Decree of Divorce from the court.
The Virginia divorce process can be extremely complex. For this reasons it’s recommended to get an experienced family lawyer. Otherwise, you may make mistakes that could cost you much a large amount of time and money.
For that reason, it may be helpful to consult an experienced family law attorney to help you through the Virginia divorce process.