Virginia Divorce Process: A 6 Step Guide

This quick guide provides a preview of the uncontested Virginia divorce process.

The Virginia Divorce Process: A Process of 6 Steps

The Virginia divorce process can be confusing to navigate. Before diving into the divorce process, you should first familiarize yourself with several key terms that will have an important effect on many aspects of your divorce.

This guide will provide a quick, general overview of those terms.

Then, it will describe the divorce process and the ways in which the divorce process differs depending on the type of divorce.

Basic Virginia Divorce Terminology

Types of Divorce

There are two types of divorce under Virginia law:

  1. divorce from bond of matrimony; and
  2. divorce from bed and board

A divorce from the bond of matrimony is a total divorce of a husband and wife, dissolving the marriage and releasing the parties completely from their matrimonial duties. This is what people traditionally think of when they think of divorce.

A divorce from bed and board is a partial divorce where the parties are legally separated and forbidden from living together, but the actual marriage itself remains intact.

Under this type of divorce, the parties are still forbidden from remarrying.

Choosing which type of divorce you want is based on your own personal beliefs, such as your religion, which may prohibit you from getting a full divorce.

The practical difference between these two types of divorce is that under a divorce from bed and board, the parties are forbidden from remarrying.

The process of these two types of divorce is essentially the same, and a divorce from bed and board can actually be altered to become a divorce from the bond of matrimony after one year of legal separation.

Grounds for Separation: No-fault v. Fault

Regardless of the type of divorce you wish to have, Virginia law requires that your divorce be based on a legal reason. This is known as the “grounds for separation,” and Virginia law recognizes fault and no-fault grounds for divorce.

A fault divorce is a type of divorce based on some type of misconduct from the other spouse.

In order to qualify for a divorce from the bond of matrimony based on fault grounds, the misconduct must be based on:

  1. Adultery, sodomy, or buggery, or;
  2. Conviction of a felony.[1]

In order to qualify for a divorce from bed and board based on fault grounds, the misconduct must be based on:

  1. Willful desertion or abandonment, or;
  2. Cruelty and reasonable apprehension of bodily harm.[2]

A no-fault divorce is a type of divorce that does not require a showing of wrongdoing by either party.

In order to qualify for a no-fault divorce, you and your spouse must:

  1. be living separate and apart for more than one year if you have children; or,
  2. if you have no minor children, be living separate and apart for more than six months, and have a separation agreement. [3]

The process for a Virginia no-fault divorce may sometimes be quicker if the parties agree on everything regarding the divorce.

However, complications frequently arise.

For example, if the parties have a child and disagree on who should get custody of that child, then there is not a separation agreement, and the process becomes more complex because it has become contested.

Contested or Uncontested?

Disagreement between the parties represents what is known as a contested divorce in Virginia. A contested divorce is a divorce where the parties involved cannot agree on one or more of the issues usually involved in a divorce (i.e. custody, child support, attorney’s fees, etc.).

Conversely, an uncontested divorce occurs when the parties agree to be divorced and agree on all issues pertaining to the divorce (i.e. custody, child support, attorney’s fees, etc.). This means that all property, custody, child support, and spousal support issues are resolved. Read more in our article entitled, “Uncontested Divorce in Virginia“.

Whether your divorce is contested or uncontested will have a huge impact on the divorce process, which is why the Virginia divorce process outlined below is organized according to the uncontested divorce process and the contested divorce process.

Uncontested Virginia Divorce Process

Step 1: Residency Requirement

In order to be able to file for an uncontested divorce in Virginia, the spouse filing for divorce must be able to prove residency in the circuit court’s jurisdiction for at least six months prior to the divorce.[4]

Once residency has been established, you may file for divorce in that circuit, and then proceed through the Virginia divorce process.

Step 2: Determine Your Eligibility for an Uncontested Divorce in Virginia

To be an uncontested divorce, both husband and wife must agree to all aspects at issue in the divorce.

However, this does not automatically make you eligible for an uncontested divorce.

Uncontested divorces are largely based on no-fault grounds. Since uncontested divorces are normally based on no-fault grounds, you must also make sure that you qualify for a no-fault divorce.

If you have children, then you must be living separate and apart from your spouse for more than one year.

If you do not have any minor children, you must be living separate and apart from your spouse for more than six months, and also have a separation agreement.

The reason that uncontested divorces occur largely under no-fault grounds is because, under these no-fault qualifications, there is a separation agreement. A separation agreement shows the court that you agree with your spouse on all issues pertaining to the divorce.

Step 3: Requirements to Have Your Divorce Heard

Once you have determined that you have satisfied the residency requirement and that you are eligible for the uncontested Virginia divorce process, then you should submit a bill of complaint to your circuit court.

A bill of complaint includes the following:

  1. Current residence of the parties;
  2. The date and place of your marriage
  3. The names and dates of birth for all minor children;
  4. A statement that each party is 18 years or older, and of sound mind;
  5. A statement of each party’s military status; and
  6. A statement that each party is not incarcerated.

In addition to the bill of complaint, you must also fill out and submit Form VS-4. This has similar information that is also included in the bill of complaint.

While the VS-4 form can be submitted at this time during the divorce process, Virginia allows you to submit the VS-4 Form any time before you have a hearing in court.

You must submit two copies of your bill of complaint to the circuit court, in addition to the VS-4 Form. There is a fee to file these forms in court, and you should contact the specific circuit court that you will file in to determine these fees.

Once you have filed these forms, the circuit court clerk will assign you a case number, which references your case and has to appear on all documents pertaining to the divorce after this filing.

Step 4: Provide Notice to the Other Party

You must provide notice to your spouse that there is a divorce proceeding by providing service of process. “Service of process” is a legal term that means you gave official notice to the other side a letter to let them know about the court proceeding.

In Virginia, service must be attempted in a specific order and manner. However, simply mailing notice to the other spouse is not acceptable “service of process” in Virginia.

Proof of service is required before the court will proceed with your divorce.

This means that you will “serve” the other party in the divorce with a copy of the complaint, a court summons, and any other documents that you have filed with the court.

This can be done a number of ways, either through the use of the sheriff’s office or a private process service company or even by an adult that is not a party to the divorce.

Using the Sheriff’s Office in your county is a common way to perform service in the Virginia divorce process. Service of process through a sheriff’s office or through a private agency almost always requires a fee to perform.

Step 5: How Do You Want Your Divorce to be Heard?

Once your spouse has been served, and your spouse has filed an answer as required by the court, the next step in the Virginia divorce process is to determine whether you want your case heard through an oral hearing with a judge or commissioner, or by deposition or affidavit.

It is important to note that your spouse has 21 days to file an answer to the court, and if they do not, then they have waived their service of process, meaning that they have implied that they consent to the Virginia divorce process by not signing.

By waiving service of process, the court will normally grant a divorce by default.

Option 1: Oral Hearing with Judge or Commissioner

If your spouse files a timely answer, then you decide whether you want an oral hearing or not, and you also decide whether you want to have this oral hearing in front of a judge or a commissioner.

Deciding between a judge or a commissioner is entirely up to you in the uncontested Virginia divorce process.

The benefit of having a commissioner hear your divorce proceeding allows for a judge to hear any post-trial motions that you may submit. It essentially allows for a second pair of eyes to look at your divorce.

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:

  1. At least two copies of a Final Decree of Divorce;
  2. The Original Separation Agreement (as required under no-fault grounds);
  3. Proof of Service of the Bill of Complaint, or proof of waiver of service;
  4. The original completed VS-4 Form
  5. A self addressed, stamped envelope (if proceeding without an attorney);
  6. An order for restoration of your former name (if you wish to change back to your last name before marriage);
  7. And 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 all of these forms are submitted to the court, you will be mailed a Scheduling Notice that tells you that your hearing request is approved. If you do not file the correct forms, or submit an incomplete form, you will be sent a Rejection Notice and a Correction Form.

Once you have received your Scheduling Notice with your scheduled hearing, the next step in the Virginia divorce process is to appear at the hearing.

While at the hearing, you have to provide evidence to support all of the allegations that you made in your bill of complaint. You must also bring your witnesses to that hearing so that they may be heard in court.

This witness must be someone that has direct knowledge of the information alleged in your complaint, and not someone with second-hand knowledge.

If you filed for divorce, you are known as the moving party, and if you fail to show up to the hearing, your divorce case will be dismissed after a 30-day review period.

Option 2: Divorce by Deposition or Affidavit

If you wish to avoid a formal hearing before a judge or commissioner, you also have the option in the Virginia divorce process 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, and when you would like a very quick divorce.

The divorce still needs to be an uncontested, no-fault divorce, which is already relatively quicker in process than a contested divorce.

If all issues in your divorce are settled or one spouse does not wish to participate in the divorce process, an uncontested no-fault divorce by way of deposition or affidavit can take place. In order for this to occur, an affidavit or a written deposition by the plaintiff and a third-party witness must be presented to the court.

Regardless of whether by affidavit or deposition, you must file a complaint with the court and wait for an answer from your spouse.

Many times, a court will specify the information they require in their depositions and affidavits. This process is different from an oral hearing, because you will not submit a Hearing Request Form.

In order to go through a divorce by deposition, the deposition should take place in an attorney’s office. A deposition is sworn testimony that is taken outside of court. The deposition must take place under oath and it must be recorded by a court reporter. Once you have these depositions taken, you must file them with the Clerk’s Office of your 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. To be sworn, you have to affirm the information and sign in front of a notary public.

You are not required to appear in court for either of these options, and that means you may avoid unpleasant interactions with your spouse. However, it is important to note that while some courts allow these types of divorce, others do not.

For this reason, it is important to consult an attorney before you decide to go through with this type of divorce.

Step 6: The Result of your Divorce Proceeding

Once you have completed the above steps as required in the Virginia divorce process, you must 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 essentially finalizes your divorce. Once the judge has signed the Final Decree of Divorce, your divorce is finalized and you will be mailed a certified copy of the Final Decree of Divorce from the court.

It is important to note that you must comply with all aspects of the Final Decree of Divorce, or else you will most likely be back in court.

Contested Divorce Process in Virginia

As you can plainly see, the Virginia divorce process is complicated even when both parties of the divorce agree on all issues. If your divorce is considered contested under Virginia’s divorce process, things only become more complicated.

Since contested divorce proceedings are even more complex, it is best to consult an attorney to counsel you through the process. However, to give you a preview of what that might look like we’ve prepared another article on our website to discuss the Virginia contested divorce process.

Conclusion

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 more than simply not being able to divorce your spouse. For that reason, it may be helpful to consult an experienced family law attorney to help you through the Virginia divorce process.


[1] Va. Code Ann. § 20-91

[2] Va. Code Ann. § 20-95

[3] Va. Code Ann. § 20-91

[4] Va. Code Ann. § 8.01-261

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