Virginia Divorce: A Step-by-Step Process
Charles Hofheimer, Attorney
If you and your spouse are considering divorce, you should become familiar with the steps involved in the Virginia divorce process.
Mediated or Negotiated Divorce
In Virginia, the divorce process can begin in a number of ways. If you're negotiating a separation agreement, you may begin with having open, honest discussions with your husband about how to divide the assets and liabilities of the marriage--with or without the help of an attorney. If you're interested in mediation, you and your husband may meet with a mediator.
The court doesn't know that you and your husband are divorcing until you file a complaint. If you've got a separation agreement, you won't file for divorce until the end of the process--after you've already drafted and signed your agreement. If, on the other hand, you begin with litigation, you'll file your complaint first. The complaint contains basic information such as the partners' names and birth dates and those of their children, date of marriage, and grounds for divorce. In a mediated or negotiated divorce, after you file, it's all pretty much downhill. You'll list as your grounds for divorce the fact that you've lived separate and apart without cohabitation and without interruption for a period of one year or more. You'll draft a final divorce decree, and schedule an uncontested divorce hearing with your local circuit court.
In a litigated divorce, the process is a little bit different. Rather than waiting until you've got a signed document in place, you'll start everything off with the complaint. In a fault-based divorce, a complaint can be an interesting document including all the specific facts we know about the husband's fault. If we're dealing with adultery, for example, we'll have to allege the name of the other woman, the approximate dates that the affair is believed to have occurred, and approximate locations. If we have other information, like emails, text messages, or cards, we'll include that information, too. Remember that we don't have to PROVE adultery to file on it, we just have to have a reasonable belief that the adultery occurred.
The person who files first is the "plaintiff," and the person who answers the complaint is the "defendant." There is no legal significance to these terms, and it doesn't make a difference to the judge. The main thing to remember is that, if your husband files first and you have been served with his complaint, you only have 21 days to file an answer. It's a good idea to meet with an attorney quickly if you've received this paperwork. Also, don't worry about what he alleges against you or what he asks for. It is a common practice to ask for more than you expect to receive, just because if you don't ask for it in the beginning, you'll be barred from asking for it later. It's all part of the process.
Once the compliant is filed, the defendant is expected to file a document called an "answer." The case can proceed when the answer is filed, or after 21 days has gone by, whichever comes first. At this stage of the divorce process, you can request a preliminary hearing in which a judge will issue a temporary (or pendente lite) order that addresses these matters.
The Final Hearing
Whether you're litigating your divorce or have signed an agreement, you'll have some sort of final hearing. Even if you've filed a litigated divorce, you can always end up negotiating a separation agreement. If you have a separation agreement, you'll have an uncontested divorce hearing. It's a quick 15-20 minute hearing where you answer some jurisdictional questions and then have your divorce granted.
If you and your husband aren't able to reach an agreement, you'll have a contested divorce hearing. At this point, you and your husband will have to present arguments about why you deserve to receive what you're asking the court to award you. At the end, the judge will determine how everything will be divided (which may or may not be the way you envisioned it), and will grant your divorce.
The Virginia divorce process is concluded when the court issues a divorce decree. The divorce decree states that your marriage has been dissolved and it also details the decisions that the judge has made in regard to division of property, child and spousal support, and child custody.
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