Last updated on May 1st, 2019
If your marriage hasn’t worked out as planned, it might be time to consider getting a divorce. If you’re considering this option in Virginia, you should research the various types of divorce allowed by the Virginia Code.
One of the most common types of divorce in Virginia is the no-fault divorce, which allows a couple to legally divorce after being separated for either 6 or 12 months.
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. However, over time the laws have changed to allow for people to get divorced for any or no reason, provided they meet a few other requirements.
This is, essentially, what a no-fault divorce is.
A no-fault divorce works exactly as it sounds. You are dissolving the marriage for general reasons, without having to prove any legal “fault” in court.
A no-fault divorce may simplify the divorce process for many people, especially those who have ended their marriage with few problems.
2. What are the Benefits of a No-Fault Divorce?
There are many benefits to a no-fault divorce, especially when compared to other types of divorce in Virginia.
As stated above, one of the most important is that you don’t need to prove “fault” in court.
Another important benefit is that you can usually outline the terms of your divorce outside of court.
As part of the no-fault divorce process, you’ll have to draft a separation agreement which covers every element of your divorce, from child custody to the division of property.
In no-fault divorces, the couple usually just wants to move on from the relationship, and there is a lower chance that they’ll fight over significant issues.
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. What are the Conditions for a No-Fault Divorce?
- Written separation agreement
- Living “physically separate and apart”
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.
3.2 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.
3.3 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. This means (usually) that you must live in different locations and completely end your relationship as spouses.
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. Further, 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.
4. Alimony in a No-Fault Divorce
Even if you’re seeking a no-fault divorce, you may still consider any of Virginia’s four faults in your alimony calculations.
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 experienced 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.