Can I get divorced alone?

Posted on Mar 18, 2016 by Katie Carter

Though most divorces have some similarities, there are a lot of things that can be different, too. There is no such thing as a “run of the mill” or “typical” divorce, so I’m always a little hesitant to answer questions without knowing more about each individual person and their backstory.
I had a woman ask me the other day whether she could get divorced alone. That’s it. The question was just, “Can I get divorced alone?” And I had to stop to think because, the more I turned the question around in my head, the less clear it was to me.
I asked her to elaborate, and she said, simply, “Well, he lives in another state.” For me, that didn’t clear things up one bit! But she obviously wasn’t the type to start talking and tell me her entire history all the way back to the third grade; she’s one where it feels more like pulling teeth than a simple question and answer session to get the information you need.
“If what you’re asking is, ‘do both parties have to agree to a divorce?’” I told her, “The answer is no.” In Virginia, husband and wife don’t have to actually AGREE to get a divorce. Only one party needs to want the divorce. The other spouse can’t force you to stay, and his (or her, depending on the situation) lack of agreement regarding the divorce absolutely does not mean that it won’t happen. So, in that sense, yes, you can get divorced alone. Only one party needs to want it.
Take separation, for example. In Virginia, to be separated, one party has to make the decision in their mind to end the marriage, and then stop cohabitating.  Cohabitation is a word we use to describe when two people live together as husband and wife. It describes the way you live inside the home (not cooking and cleaning after each other, sleeping in separate rooms, and so on), AND the way you live outside of the home (not playing ‘happy couple’ when you’re in front of other people). It doesn’t take two people to decide to separate; likewise, it doesn’t take two people to move forward with a divorce.
In Virginia, grounds for divorce are simple. No fault divorces are based solely on the period of separation which, as we’ve already said, can be initiated and completed by one party on their own. Fault based grounds, on the other hand, are more complicated (because they have evidential requirements that have to be met according to particular standards)—but still only require that one person allege (and then prove) that their grounds exist for a divorce to be granted.
But, as you probably have already started to suspect, it’s not that easy. It’s not like one person can decide that they don’t want to be married anymore, and they can just move forward with the divorce. Once you decide you don’t want to be married anymore, you’ll have to separate (which will clue the other party in on things), and you’ll have to file for divorce. When you file for divorce, the other party will certainly know what’s up; in fact, in Virginia, he will be served with divorce paperwork! (And, likewise, this could also work in reverse, with him serving you divorce papers.)
Once a divorce is served on the other party, they have 21 days to respond. They can respond to your complaint for divorce by filing an answer and/or a counterclaim. You can’t proceed without further notice to them unless they ignore service of process. And, generally speaking, they won’t. Though it’s theoretically possible that you could serve someone and they could ignore it, that rarely happens.
Once he responds, you’ll have to deal with him to finalize the divorce. He could hire an attorney, or he could represent himself. He could respond quickly and move forward with purpose, or he could move slowly enough and respond often enough to slow everything down to a snail’s pace. Once he responds to your complaint, though, you can no longer move forward or do anything without notice to him; he has a right to petition the court and be heard, just like you do.
If your husband is hard to find, that can produce other difficulties. If you don’t know where he is to serve him, things will be exponentially more complicated. Sometimes we have trouble having people served who live on military bases, live in foreign countries, or who seem to have disappeared altogether. Normally, this really isn’t the case (these types of case are definitely the exception, not the rule), but it has been known to happen.
It’s going to be difficult to move your case forward if you can’t find your husband to serve him. Even though the decision to separate and divorce remains with you, and, certainly, if he fails to respond at all, you can move forward without further notice to him, you’ll still have to have him served and at least provide him with an opportunity to respond. Whether he does so or not is certainly up to him, but you’ll at least have to provide him with that chance. The case can’t move forward without at least giving him a chance to respond to your allegations against him.
So, what happens when you can’t do that? It can be tricky, but we’ll have to figure out a way to get him served.
As you can tell, there are some parts of your divorce that you can handle on your own, without your partner becoming involved at all, but that isn’t always the case.
Deciding to separate and filing for divorce are decisions you can make all on your own, without the input of your spouse. But, beyond that, in most cases, he’ll be involved. You’ll certainly have to have him served and then, at that point, it would be incredibly rare for him to not respond within the 21 day period. (And, sometimes, even if he responds outside of the 21 day period, a judge will grant his motion to provide late pleadings anyway!) At that point, he can make things easy—or he can make them very, very difficult.
Most of the time, people get divorced with a separation agreement, which is basically just a formal legal contract that divides the assets and liabilities of the marriage between the parties. A separation agreement is usually negotiated (with or without attorneys, through collaborative divorce, or through mediation), and both parties are involved. Once a separation agreement is signed and negotiated, it’s really a very simple matter to finalize the rest of the divorce. At the end of the year of separation (which makes up your grounds for divorce), when it’s time to actually file for divorce, you’ll file and ask the divorce for an uncontested, no fault divorce—with equitable distribution, child custody, support, and all the other issues to be handled as specified by the separation agreement. Easy peasy.
Then, it’s only a matter of getting the divorce granted. When it comes to an uncontested no fault divorce (as opposed to any kind of contested divorce), it’s really very simple. You’ll either have an uncontested divorce hearing or you’ll file for a divorce by affidavit. In either case, only one side has to do the work so, in a sense, you can do that on your own, too. (Except, of course, that your spouse has likely contributed in some way to the separation agreement.) You can appear alone (well, with a corroborating witness, but without your husband) at an uncontested divorce hearing; likewise, you can prepare the paperwork for a divorce by affidavit on your own, too. Or, alternatively, if you’d prefer that he pay for this portion of it, you can have his attorney prepare for the uncontested divorce hearing or the paperwork for the divorce by affidavit. (At this point, there’s really no risk that he can change the terms of your agreement; that part is already done. All the attorney can do is prepare the divorce, which is not prejudicial to you.)
So, in some ways, yes—you can get divorced on your own. There are certainly lots of steps in the process that you can undertake on your own, without contribution from anyone else. But there are points in the process, too, that require (or at least allow) his participation.
For more information, or to schedule an appointment to talk to one of our licensed and experienced Virginia divorce attorneys, give our office a call at (757) 425-5200.