Virginia No-Fault Divorce: 5 Things You Need to Know

No-fault divorce in Virginia may be a reasonable option for couples separating amicably.

Your marriage hasn’t worked out as planned, and it’s time to get a divorce. You’ve heard of a no-fault divorce, but aren’t exactly sure what that means.

If you feel confused about the Virginia no-fault divorce process, we’ve got you covered. This article goes over the 5 most important things you need to know about a Virginia no-fault divorce.

1. What is Virginia No-Fault Divorce?

In ye olden days, a legal divorce required “fault,” or a valid and tangible reason for the couple to separate. In the last few decades, states have adopted a separate type of divorce called “no-fault” to allow couple who simply don’t want to be married any longer to get a divorce.

A no-fault divorce is exactly what it sounds like. You are dissolving the marriage for general reasons, no fault is needed. In contrast, fault based divorces are required to prove that something like adultery or neglect has happened. For no-fault, there is no burden of proof.

A no-fault divorce may simplify the divorce process for many people, especially those who have ended their marriage with few problems.

2. Benefits of a No-Fault Divorce

There are many benefits of a no-fault divorce, compared to other types of divorces. The requirement of a written agreement in a no-fault divorce may allow you to resolve issues in a favorable way. You know your problems, children, and assets better than a judge will, and that can be reflected in a separation agreement.

Furthermore, contested divorces that require litigation are subject to court delays and processing times. Generally, you must wait 6 months (without kids) or 12 months (with kids) to file for a no-fault divorce. However, separation agreements and other documents can be prepared before this cutoff and submitted once the waiting time is over to make your divorce process faster.

3. Conditions for a Virginia No-Fault Divorce

The basic requirements to file for a Virginia no-fault divorce are:

  1. Residency
  2. Written Separation Agreement
  3. Living Physically Apart and Separate.

These requirements are laid out in Chapter 6 of Title 20 in the Virginia Code. Specifically, we will look at § 20-91.

Residency

The first requirement for a Virginia no-fault divorce is that you or your spouse must live in Virginia for at least six months before the divorce is filed.

The Written Separation Agreement

The second requirement to obtain a Virginia no-fault divorce is a voluntary, written separation agreement. A separation agreement will allow both parties to set out how to divide their marital property and other assets, any spousal support (alimony), child support or custody, and many other important issues.

A separation agreement is created by equitable distribution. This does not mean that things are split equally, but rather the division of things is fair to both parties.

There are some common ways to get a separation agreement in place:

  • Negotiate an agreement on your own without hiring an attorney. If you choose this route, it is important to know that a court may use this agreement later on in your divorce process.
  • Hiring an attorney to negotiate a written separation agreement for you. This attorney can help you with this process and ensure your interests are represented in the agreement.
  • Through mediation. An impartial, professional mediator will assist both parties in reaching an agreement on divorce matters.
  • Hiring a collaboratively trained attorney and go through a collaborative divorce process.

Living Physically Separate and Apart

Lastly, a Virginia no-fault divorce requires that the parties live physically separate and apart for a specified length of time. The sooner you and your spouse no longer live together, the sooner the court will be able to finalize your divorce. This length of time will depend on whether you and your spouse share any minor children under age 18.

If you do not have any minor children under age 18, the parties must live physically separate and apart for six months. If you do not have any children under age 18, the parties must live physically separate and apart for one year.

The separation from your spouse must be continuous, without interruption, without cohabitation, and with the intent that the separation be permanent. Even one slip-up in this process can restart the clock.

If you are looking to get a no-fault divorce, it is extremely important to remain living physically separate from your partner to ensure this requirement is met. Broken periods of time cannot be combined together to reach the statutory requirement. Any cohabitation (intercourse) could break the cycle, and cause complications in your no-fault divorce.

You will need to provide evidence of your separation to the court. Simply saying that you are no longer living together will not be enough.

Timeframe

If you and your spouse have been living separate and apart for your required time and have a written separation agreement, the process can take as little as one month. If you and the other party have disagreements or other outstanding issues, the process may become contested and can take much longer.

4. Alimony in a No-Fault Divorce.

Although a divorce is being sought on no-fault grounds, fault may be considered in relation to alimony.

For example, if your spouse cheated on you, but you chose to base your divorce on no-fault grounds, a court may still consider the adultery when determining an alimony award.

To relieve a spouse of their alimony obligations, the record must establish that the separation was caused by fault or misconduct constituting another ground for divorce, even in a no-fault divorce.

5. Hiring an Attorney for a Virginia No-Fault Divorce

When done incorrectly, divorce can be a long and difficult process, and should be taken very seriously. During a divorce, your children, property, and money are all at stake. Additionally, if the other party has an attorney, anything you sign can and will be used against you in the proceedings.

An attorney can help prepare, review, and explain documents so you know exactly what is going on. While a divorce can be done without an attorney, hiring a competent and experienced attorney will be able to help preserve your interests throughout the process. Often, going solo can end up costing you more than hiring an attorney ever could.

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