I’m not ready to finalize my Virginia divorce yet. Can I wait it out?

Posted on Jan 7, 2022 by Katie Carter


For one reason or another, lots of times people just aren’t ready to finalize their divorce. Whether they’ve already negotiated a signed separation agreement or they’ve filed a contested divorce and had a few hearings, the urgency sometimes dissipates once temporary child and spousal support is established.

After all, divorce comes with some inconvenient realities – like the end of health insurance. There’s a million different families with a million different realities, so it’s not like there’s a ‘one size fits all’, except that, for a few of my clients, it seems like they’re not really in any hurry to actually get divorced, once some of the bigger issues are at least temporarily resolved.

On the one hand, that’s fine. It’s not like we have to move with all possible haste towards the finish line or something terrible will happen. It’s also part of the reason why, when people ask me how long a divorce takes, I have to hesitate a little. In a lot of ways, the speed with which we accomplish a divorce is really up to the client herself – or her husband, especially if he has an attorney.

How long can I delay finalizing a divorce?

It’s not like a divorce can go on indefinitely, though – especially not if a case is filed. In a separation agreement case, where nothing has been filed with the court, it’s not unusual for a case to take way longer than is really necessary. In fact, I’ve got a case now that has been open for over four years – and we haven’t even gotten a finished draft of the agreement in place! I reach out to the client every so often and ask her whether she’s ready and she’s not, so – I just hold off.
In a separation agreement case, that’s fine. There’s no court breathing down your neck to hurry you along; but, on the other hand, there’s no court helping you along if the other party is dragging his feet, either. It’s one of those proverbial double edged swords. The good news is it can take forever, but the bad news is it can take forever!

Can I delay finalizing a divorce in a contested case where the court is involved?

In a case where a divorce has been filed with the court, though, there are some limitations imposed by the law. Specifically, cases can get purged if there has been no activity (meaning, no orders entered) in the last three years. So, if you go to court on a pendente lite and get an order entered, you should do something else before three years is up. Ideally, there’d be another order or something – which would give you a further three years – before too long.

Does that mean I have to finalize my divorce in three years or my case will get purged?

It’s a moving target; it’s not like it’s three years, period, and then you’re done, but the court does expect there to be some flow of activity. That’s in-court activity, too, not just that things have gone on behind the scenes. If you get to the three year mark and nothing has happened in court, the court can purge the case from the docket, dismissing your case.

Theoretically, though, you could wait 3 years between an ‘order or a proceeding’, which would extend the purge point another three years down the line. There are plenty of cases that take longer than three years, but the court wants to see that there is relatively consistent activity on the file to keep it active on the court’s docket.

What does it mean if my case is purged?

A dismissal is without prejudice, meaning that you can file the case again at any point. You could also petition to reinstate the case, according to the statute – but, if you do that, you may be subject to a scheduling order and the court will want to see that you’re prepared to move relatively quickly towards a final resolution.

Either way, it’s a bit inconvenient. If you have to reinstate the case, you’ll have to take extra steps. Not to mention, all other temporary orders – usually pendente lite orders – would be vacated, meaning that they’d just go away.

If you don’t challenge the dismissal, you’ll have to file again at some point, pay another filing fee, and start from the beginning.

It’s expensive to re-do things that have already been done, so it’s better, in most cases, to move forward towards a final resolution with at least some sense of purpose. It’s fine to not get divorced as soon as humanly possible, but you should also be aware that there are time restrictions on your case as well.

For more information, or to schedule an appointment to discuss your case with an attorney, give us a call at 757-425-5200.