Can I do my own uncontested divorce if he’s not cooperating?

Posted on Apr 21, 2020 by Katie Carter

I’m taking a little break from all of the COVID-19-themed posts to answer a question that I saw recently in a live chat. It’s a fairly long story, so I won’t bore you with too many details, except to say that the woman was asking about filing for her own divorce. (Never mind that right now the courts are closed, so actually getting something resolved is really up to the individual court involved.) She told us she had her complaint, her final decree, her confidential addendum, etc., etc, as well as her half of the signed separation agreement.
She indicated that her husband was not being as cooperative as she would have liked; he indicated that he was working with a JAG attorney, which he is apparently not, and that she didn’t know what to do about the Servicemembers Civil Relief Act (SCRA). She wanted to know if this would be good enough to get the divorce, and whether it was okay that he wasn’t cooperating.
There are a lot of issues here (as there often are), and I specifically want to talk about one – the separation agreement and the uncontested divorce – today.
JAG attorneys and Virginia divorce
I’ve said it before and I’ll say it again, though: JAG attorneys, though they have their place, can’t represent you in divorce court. (Or your husband.) In Virginia, you must be a licensed member of the Virginia State Bar to appear in any courts in the Commonwealth. Though a JAG attorney could possibly be licensed in Virginia (if that was there home state), JAG attorneys practice military law in the military tribunals. They do not appear in state courts and, in many cases, aren’t licensed in the states where they’re stationed anyway. JAG attorneys CAN NOT take divorce or custody cases at the state level. They’re not even supposed to help draft separation agreements – though sometimes they do, with potentially disastrous consequences. Since they don’t do family law at all, and may have little to no familiarity with the state in which they are stationed, they don’t know your rights and entitlements under Virginia law. If you want to sign it, you’re a grown up and can do what you want – I’m just saying, it’s risky.
“His” half of the separation agreement
Although I went on a little tangent about JAG attorneys a minute ago, the real reason I’m writing today is because of the whole his and hers “halves” of the separation agreement thing she mentioned.
It…doesn’t work that way. I am so sorry to burst your bubble, but a contract isn’t valid unless both of the parties have signed it. That’s true for any contract, not just a separation agreement.
Even if he is in agreement and just hasn’t signed, he can’t pop into the courthouse and scribble down his little John Hancock. It doesn’t work that way. You need to send an already signed agreement to the courthouse – that is, signed by BOTH of you.
If any negotiations need to happen, that’s something you either need to do between the two of you, or with attorneys. The court isn’t going to help you do your go-betweening. That’s just not the function of the court.
You can send in half of a separation agreement to the court, but the court will just send it back. It can’t finalize without both signatures, and it won’t do the footwork needed to get his signature on the document. That’s up to you – or, if you have one, your attorney.
But he won’t sign! He’s just playing games!
Well, then, you’re not at the point of finalizing anything. Maybe it’s time to negotiate some of the finer points of the agreement? Or hire an attorney, so that what you’re doing looks like it has a little more authority behind it?
I can’t make it time to file if it’s not; the case has to be essentially finished before it goes to the court (or, alternatively, you’ll have to set a trial date and let the judge determine the whole kit and caboodle).
There’s no such thing as having half an agreement. I mean, there is, but it’s worthless. Unless and until the two of you reach an agreement, you have nothing but a proposal. He can sign, or he can not – and there’s not much you can do about it. You’ll have to either hire an attorney, negotiate on your own, or schedule a trial to move your case forward.
An uncontested divorce is a choice, and it’s not one you can make alone. Though he can’t stop the divorce from happening, no matter how much he might like to, if the two of you can’t agree, you’ll wind up in court.
For more information, or to discuss your options with a licensed and experienced Virginia divorce and custody attorney, give our office a call at 757-425-5200.