The end of a marriage can cause emotions to run high, making it nearly impossible for spouses to discuss divorce and separation objectively. For this reason, it is vital that you do two things: learn as much as possible about divorce requirements in Virginia and seek out an experienced divorce attorney to protect your rights and interests during separation.
What Kind of Divorce Should I Expect?
The process of separating from a spouse can be complicated and involves complex legal terminology that can make matters even more confusing. It is vital that you know your options and which type of divorce you’re facing before you file your paperwork.
Depending on your circumstances, you may be preparing for:
- Fault divorce. The state of Virginia requires spouses to produce legal grounds (in other words, a valid reason) for the dissolution of a marriage. The reason for divorce should be considered carefully since grounds will be considered by the court when deciding property division. Fault-based grounds for divorce could include adultery, cruelty, desertion, and a felony conviction with confinement of at least one year. If you file for a fault-based divorce, you will have to provide proof of the misconduct for the benefit of the court.
- No-fault divorce. Virginia does allow one type of no-fault divorce based on grounds of separation. Spouses with minor children may file for a no-fault divorce if they have been living separately and apart for at least one year, while couples without children may file after six months of separation.
- Separation. You and your spouse may separate temporarily or as a precursor to divorce. If you are separating with intent to divorce, you will need to sign a separation agreement stating how you will divide your property and debts, who will have child custody or visitation rights, and the amount of spousal support and child support that will be paid.
- Uncontested divorce. If you and your spouse both want to divorce and you agree on all matters (including division of marital property and child custody or support), this is known as an uncontested divorce.
- Contested divorce. If you or your spouse disagree on one or more issues that must be decided before the divorce can be finalized, this is known as a contested divorce. If you cannot reach a compromise, a judge will hear your arguments and make a final decision for you.
Which Matters Are Decided in a Divorce?
The issues that are settled in a divorce go far beyond ending the marital relationship. In fact, the choices you make during a divorce can affect your finances, housing situation, and relationship with your children for years after the divorce is final.
If you are considering divorce, you and your spouse will have to decide:
- Who will keep the family home
- How shared property (such as cars, bank account balances, and other assets) will be divided
- Whether one spouse will have to make support payments (alimony) to the other
- Where the children will live
- Which parent will have physical custody of the children
- Whether the non-custodial parent must pay child support
- Whether the non-custodial parent will have visitation rights
- Whether both parents should have shared legal custody of their children
- What will happen to family pets
What Happens During the Virginia Divorce Process?
The laws and procedures for divorce vary from state to state. In Virginia, at least one spouse must have lived in the state for the last six months before filing for divorce. Once you have completed divorce paperwork and filed the documents in the appropriate Virginia Circuit Court, you will have to serve your spouse with a copy of the complaint and a summons. You can serve your spouse yourself, but it is commonly done by a sheriff or a private process server.
No two divorce cases will be the same. Depending on the specifics of your case, the process could involve:
- Signing a Property Settlement Agreement. Your divorce cannot be final until you have signed a written contract between you and your spouse that sets forth each person’s rights and responsibilities. This document includes “who gets what,” custody plans, and other vital details of the divorce settlement. Your attorney can be invaluable in drafting a fair and reasonable Property Settlement Agreement, ensuring you do not agree to a settlement that will cause financial hardship in the future.
- Negotiations. If there are reasons one (or both) spouses refuse to sign the Property Settlement Agreement, a trial date will be set for the judge to rule on the case. However, you can still attempt to resolve the conflict before trial through mediation. If spouses and their attorneys can reach an agreement during negotiations, there may be no need for trial and the final paperwork may be signed. Otherwise, negotiations may continue before and during the trial.
- A waiting period. Only a judge can grant a divorce, but this does not necessarily mean you will have to go to court. Once your divorce paperwork (including Property Settlement Agreement) has been filed, it is sent to a judge to sign the final Decree of Divorce. The time it takes for a divorce to be finalized depends on court schedules and judges’ availability, but is generally between 30 to 90 days.
- Trial. If you and your spouse cannot reach a compromise on outstanding issues by the date of the trial, a judge will make the final decision for you. You and your spouse must appear in court, your attorneys will need to gather and exchange information, and you will be expected to present evidence and make a strong argument for the judge to rule in your favor.
Every Divorce Benefits from a Skilled Attorney
While it is vital to have an experienced family law attorney on your side during a contested divorce, there are no downsides to involving an attorney in uncontested cases. James Short has helped many clients through the toughest times in their lives, helping them end their marriages and ensure that they will be able to meet their future goals. Call or contact us today to learn your next steps.