How do I prove we’ve been separated for a year?

Posted on Jan 15, 2018 by Katie Carter

Most people are aware that they’ll have to prove, at the end of a year, that they’ve been separated in order to get a divorce. What they don’t know, though, is how all of that is accomplished at the end of the process.

We get lots of questions about how things are proven and what needs to happen at the end of the one year of separation. It’s actually a really good question, too, especially because it can be confusing, and things can be different depending on the type of divorce you’ve pursued up until this point.

Grounds for divorce

In Virginia, as in pretty much everywhere, you have to have grounds to get divorced. Your grounds have to exist when you file for divorce, so we have to first look at the grounds you’ve alleged to figure out how you’re going to move forward with finalizing your divorce.

Fault based grounds for divorce

You can file on fault or no fault grounds in Virginia. If you file on fault, you’re using something – like adultery, cruelty, apprehension of bodily hurt, desertion, abandonment, or felony conviction – to argue to the court that you don’t want to be married any longer. You’re pointing to a certain reason that allows for the marriage to end. Since that thing has already occurred, you can file for divorce immediately if you’ve got fault.

Ultimately, to prove fault, you’ll have to go all the way through with the contested divorce process (there’s no such thing as him “agreeing” that he has committed one of the fault based grounds for divorce, thereby allowing you to pursue an uncontested divorce), which means arguing to the court about how all of your assets and liabilities will be divided, and also proving, to the judge’s satisfaction, that your fault based grounds exist.

For these reasons, many people, even though they might file on fault, don’t finalize on fault. It’s expensive and time consuming, and, generally speaking, you’ll get better results by negotiating an agreement at some point. You may not feel like that’ll be possible, and that’s fine (many people don’t at the beginning, which is often why we file on fault to start with), but just know that chances are pretty good that you’ll settle later on down the line. (And, frankly, it’s very often better that way, anyway.)

So, all that to say that, though you may FILE for divorce immediately, you don’t finalize until your one year has been up. At that point, you either (1) petition the judge to enter your divorce at your trial, or (2) you’ve already settled, and you move forward with the uncontested divorce process.

No fault based grounds for divorce

No fault grounds for divorce are based on your period of separation. In Virginia, you must be separated for either one year, or six months, if two conditions have been met: one, you’ve got no minor children, AND (2) you have a signed separation agreement. If you have minor children or do not have a signed agreement, you’ll have to wait the full year (365 days) to FILE for divorce.

In a no fault divorce, you can’t file first, like you could in a fault based divorce. Why? Well, like I said before, to get a divorce, you have to have grounds – currently existing grounds. If you haven’t been separated for a year (or six months, if those two criteria have been met), you can’t file because you just don’t have grounds yet. You’ll have to wait for that one year time period to lapse before you can file.

That doesn’t mean you can’t do anything at all. Most people use that period of separation to negotiate a separation agreement. And then, once it’s signed, they just wait (though most agreements include a provision that each party can live free as though single and unmarried in the mean time) until the year has run and they can file and finalize their divorce.

In a no fault divorce, you wait – and then file after the one year (or six months) is up.

Uncontested, No Fault Divorce

Real talk here. Most people get uncontested, no fault divorces. Most of the time, even when things seem really contentious to start, we wind up settling. Why? Well, because it’s too expensive, too time consuming, and too generally unsatisfying to go to court.

What do I mean – generally unsatisfying? Well, you’re not going to get “your day” in court. The judge isn’t going to tell him he’s a bad man, and award you everything, no matter how badly he has behaved. It’s often really anticlimactic, as most people start to see after they’ve filed and have been in front of the judge a few times. A judge sees a marriage as a business transaction, and he or she just wants to dissolve it as quickly and painlessly as possible (for him or her). Usually, they’re looking for a result that’s equitable (meaning something close to “fair,” although I don’t recommend you use that word), and that divides the marital assets between the parties. His adultery or cruelty or generally laziness doesn’t mean he won’t receive his marital share; in fact, he probably will.

Pain and suffering in divorce

A divorce isn’t a personal injury case; there’s no way to sue for pain and suffering. It doesn’t work that way. Though you may have endured plenty of it, there’s no way to financially compensate you for your suffering.

Uncontested divorce procedure

In an uncontested, no fault divorce, you can ultimately finalize your divorce in one of two ways: (1) at an uncontested divorce hearing, or (2) by affidavit.

An uncontested divorce is mostly a simple matter of filling out necessary paperwork – a final divorce decree, a child affidavit, a confidential addendum (to protect the confidential information in your divorce), and so on. Your attorney will prepare that paperwork for you, if you’re represented by counsel. These documents are pretty tricky, and lots of pro se litigants (people who are representing themselves) struggle here, especially with the final divorce decree, which requires really specific language.

Regardless of which way you choose to go (more detail on each option in a minute), you’ll have to testify, and you’ll also have to have a corroborating witness to testify. Well, not necessarily YOU (your husband could do it too), but either the husband or wife will have to be the moving party, and will have to petition the court for the divorce. You don’t both have to attend the hearing or prepare the affidavits.

Who should my witness be?

Your witness can be anyone who knows that you and your husband have been separated for the full year. Preferably, you’d choose someone you’ve known a long time, and has known both you and your husband.
Though I’m sure you weren’t thinking of this, and it’d never cross your mind in a million years, definitely DON’T bring your new boyfriend.

Your witness will need to testify to your relationship, how long you’ve known each other, how long you and your husband have been separated, and whether you intended to end the marriage when you separated (along with some other boring, jurisdictional type stuff). A safe bet for a witness would be your mom, sister, best friend, or close neighbor. Ideally, your witness should also be someone who has been to your house in the last year.

Uncontested divorce hearing

An uncontested divorce hearing is a quick, easy, painless process. You go in person to present those documents (final divorce decree, etc) to the judge. You and your witness testify. Usually, you answer questions from a prepared script, and either your attorney will ask the questions, or the judge will.
People choose an uncontested divorce hearing sometimes because they want to feel the divorce being finalized – or because their court doesn’t offer divorce by affidavit. It’s often not necessary, but still some people choose to go to court anyway.

It’s not scary; the judge won’t be mean. Judges like uncontested divorces, and he or she will likely be very affable towards you. Like I said, anyway, it’s a super quick hearing, and you’re pretty much in and out. If you want to go to court to see this thing through to the end, you certainly can.

Divorce by affidavit

In the last couple years, most people now get divorced by affidavit. That’s because it’s painless, and you don’t have to go to court. You prepare all those same documents you needed for the uncontested divorce hearing, and instead of going with your witness to provide information to the court, you and your witness testify in affidavit form. That is, you provide your answers, all written out on the page, and you sign and notarize them. It’s the same thing as providing the testimony in court, only you don’t have to go to court.

The only catch is that, since you don’t go to court on a certain day at a specific time, you don’t know when your divorce will be entered. You basically send all of your information off to the court, where it gets put in a pile, and the judge reviews it in the order in which it was received. Depending on how many of these things a particular court has pending can determine how long it takes for your divorce to be reviewed and granted.

It often takes anywhere from two weeks to two months; I’ve had a couple recently that I had to call in to the court to pester the clerk about because it had taken so long. There’s nothing I can do, though, about the volume of petitions in any given court so it just takes as long as it’s going to take—and that can be frustrating, because it’s hard for me to estimate ahead of time and for you to plan for. Besides that, you won’t know that it was entered for sure (unless you’re checking case status online every single day) until the final decree comes back to your attorney in the mail. Still, it’s easy, it’s painless, and you don’t have to go to court – a big thing for a lot of people who’d just generally prefer to avoid it if at all possible.

So, how do you prove you’ve been separated? You testify. Most of the time, testifying happens by affidavit, though it can happen in person. Sometimes a judge asks some more questions beyond what we’ve prepared in the script, especially if you go in person for an uncontested divorce hearing. The judge just wants to know that you’ve been separated for a year – because, like I said, you have to have grounds to get divorced. The judge just wants to know that he’s granting a divorce that he has reason to believe has statutory grounds, since the statute requires that period of separation. All you and your witness need to really, really know is your date of separation, and the fact that it continued for a full year (or six months, if you meet those criteria). That’s it. It’s really pretty easy–though you do have to make sure all of your documents have been properly drafted.

For more information about uncontested divorces, divorces by affidavit, or separation agreements, give our office a call at 757-425-5200.