Once you (and your spouse) have made the decision to divorce, you start to worry. How long is it going to take? How much is it going to cost? Will I have enough money to survive on after this is all done?
In most cases, the tensions escalate before they deescalate, and there’s a period between making the decision to divorce and when it’s all said and done that everyone feels pretty crummy. It’s normal to start to think about possible worst case scenarios.
It’s not a fun place to be. In a lot of ways, getting a divorce is like doing your taxes. It’s a lot of gathering of documents, a lot of worrying, a lot of annoying paperwork, and a lot of time.
Most women ask me how quickly it can be done. The answer is – like the answer to so many other questions – that it really depends. Let me explain.
In Virginia, like in pretty much every other state, you have to have grounds to file for divorce. You can’t file for divorce at all until your grounds exist, so fault based grounds (adultery, sodomy, buggery, cruelty, apprehension of bodily hurt, desertion, abandonment, and felony conviction) give you an immediate ‘in’. You can file for divorce immediately, once one of those grounds exists.
That gives you access to the courts, the ability to have a pendente lite hearing and conduct discovery, and to make sure your basic needs are met.
All of the fault based grounds except adultery, though, do still require that you be separated for a year before you finalize your divorce. So, it will take at least 366 days to finalize – and that’s if you’re able to schedule your trial for the 366th day, which is possible, but probably unlikely. In general, contested divorces often take far more than a year to resolve.
If you use adultery as your grounds, though, you don’t technically have to wait a year before you can finalize your divorce. You can set a hearing at any point and get an ‘immediate’ divorce.
Does it actually happen? No. I’ve never seen or heard of it happening. There are a couple of reasons for it.
For one thing, if you don’t have sufficient proof – you have to establish adultery by clear and convincing evidence, which almost always requires a corroborating witness – the judge could refuse to grant your divorce. So, you could get all the way up to the finish line, have done all the work to prepare for your trial, and find that the judge is unconvinced. Without other grounds to fall back on (which you wouldn’t have, since you haven’t been separated for a year, which is required by all the other grounds for divorce in Virginia), the judge could totally dismiss your case. You’re back at Square 1. You’ve spent the money. You’ve been through the trial. And you have absolutely nothing to show for it; you have to start all over again to finalize your divorce.
From a case management perspective, that’s not a position any attorney wants a client to be in.
From a realistic perspective, though, getting an ‘immediate’ trial is not a thing. Most courts are seriously backed up. There are courts in Hampton Roads now that are setting trials more than a year out, so it’s not like you’d be able to get a trial next month. With the judicial emergency after COVID-19 started in 2020, things are even more backed up than usual. There’s no space in the docket for adultery cases to get added in; it’s not an emergency.
And, even if you DO have a trial date, we’re finding that things are getting bumped because divorce cases are less important to the court (or, at least, they don’t have a ‘speedy trial’ Constitutional requirement) than criminal cases.
So, as a practical matter, even though the law allows an ‘immediate’ divorce, that’s not really a thing. In real life, it’s probably likely that you’d wait more than a year to have a hearing set, even if you have really ironclad proof of adultery.
I was holding out hope that I could get an immediate divorce! Do I have any other options?
Yes, of course! There are definitely other options. Most fault based divorces are going to take a year – or even considerably more.
There’s also a no fault option in Virginia. The requirements are similar, so I don’t want to totally mislead you, but hear me out. You can get divorced after just six months of separation if (1) you don’t have any minor children, and (2) you have a signed separation agreement.
You may not meet those criteria, though it’s great if you do. Six months is pretty speedy, and I’ve definitely finalized a few in the 6-9 month range, which is lightning speed as far as divorce is concerned.
If you DO have minor children, though, you’ll have to wait the full year. Though that’s not necessarily a terrible thing!
Though a no fault divorce can be contested – meaning that it goes all the way to trial – in most cases, no fault divorces are resolved by an agreement between the parties.
When you ask yourself about how quickly you can get your divorce resolved, also ask yourself what you’re looking to achieve. Is it the actual divorce, or is it just some closure and peace?
I find that, for most women, once a separation agreement is signed, the actual divorce is more or less anticlimactic. Sure, it’s nice to have it finalized – name change orders entered, QDROs processed, and so on – but, for the most part, what people are looking for is just the closure and peace that comes from negotiating an outcome.
Once a separation agreement is signed, you’re free to live as though ‘single and unmarried’. You’re not single and unmarried until the divorce is finalized, but, at that point, you know how it’ll all shake out. With the exception of custody, visitation, and support, which are modifiable based on a material change in circumstances, the rest is more or less set in stone and unchangeable.
That peace of mind – of knowing what’s yours and how it’ll all be divided – is usually what people need to know in order to feel some closure. The divorce itself is icing on the cake, but its less important than having some resolution.
How long does it take to get a separation agreement in place?
That depends too. I’ve worked on plenty of cases where I’ve done a draft, the husband has signed, and it’s all done – within a period of a couple days or weeks.
I’ve worked on others for months, while we send negotiations back and forth. Sometimes, we even have a 4-way or judicial settlement conference to work through the final agreement. Other couples work through mediation or the collaborative divorce process.
Others take years – though that’s because of the parties, not because of the attorneys, and it’s certainly not required that it take that long. I have a case now that has sat on my shelf for several years, and the client keeps telling me that she’s not ready to finish the draft yet. But that’s the exception, not the rule.
Most couples probably negotiate an agreement within a period of months, rather than years. And most couples are pretty satisfied after that point.
If I had to pick the speediest divorce, I’d say that an uncontested no fault divorce is fastest. Immediate divorce, though it sounds nice, isn’t really a thing.
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