Uncontested Virginia Divorce by Affidavit

Posted on Nov 2, 2020 by Katie Carter

I’ve been practicing family law for close to a decade now, and, even in that time, I’ve seen a lot of major changes to how we do things that (I think, anyway!) are really interesting.

One of the biggest changes I’ve seen is that, instead of doing uncontested divorce hearings regularly, almost all of our clients get divorced by affidavit in uncontested cases nowadays.

An uncontested divorce hearing was a brief, 10 minute hearing, in which the judge asked the client and her corroborating witness the same questions we now use in our affidavits.

Now, instead of having to appear in court – something that, without fail, seemed to stress out my clients, even when I told them over and over it as really no big deal – they, and their corroborating witness, can fill out an affidavit and sign in front of a notary.

An affidavit is viewed as being the same as in-court testimony; it’s a statement made under oath, and under penalty of perjury.

Though I thought an uncontested divorce hearing was painless before, there’s no question that a divorce by affidavit is an even more streamlined process. Instead of having to actually appear, a divorce by affidavit only requires that all the necessary paperwork be submitted to the court.

Most of the pieces come to the court in a couple different stages. First, you file a complaint with the court. A complaint is the document that formally opens the case with the court. After the complaint is filed and the case is opened, it’s returned to the attorney for service on the defendant.

In the divorce context, we use the terms ‘plaintiff’ and ‘defendant’, but it doesn’t mean ‘accuser’ and ‘accused’ the way it does in criminal cases. It just differentiates the person who filed first from the person who responded. There’s no ‘guilt’ inferred here.

After the defendant is served, he has 21 days to respond. This is a slow point, and there’s nothing you can really do to speed it along. If he doesn’t want to respond sooner, well, he has the full 21 days.

His response can either be a counterclaim, which is basically a complaint in reverse, or a waiver, which is a legal document that specifies that he doesn’t require any further information about the case as it progresses. If he is unrepresented, he may be willing to sign the waiver, but if he has an attorney, its probably likely that his attorney will want to review any documents filed.

After that, you have to prepare and submit your final divorce packet to the court. The specific contents of the packet can vary by court – some courts, for example, require civil action cover sheets, and others require copies of your marriage license – but the basic components are the same across the board. You’ll provide copies of your separation agreement, your plaintiff and witness affidavits, your draft final decree, a child affidavit (if you have minor children), any prepared qualified domestic relations orders (QDROs) or other documents related to the retirement accounts, name change orders, etc.

Your final divorce packet will go to the court, and go into a pile. The judge will review your packet and either grant your divorce, or send documents back to you – or your attorney, if you’re represented by counsel – for edits.

If you get a request for edits – a correction notice is what it’s called – you’ll also get a sheet specifying exactly what the problem is, so you can fix it. It’s not necessarily an easy fix; courts are notorious for changing requirements seemingly without any just cause. Still, you should at least be able to determine where the problem is, even if you’re a little unclear about how to fix it. (And, hey, if you feel that way, welcome to the club!)

Does my husband have to complete the same paperwork?

Only one spouse – and his or her corroborating witness – has to complete the uncontested divorce paperwork. If he (or you, if his attorney is moving forward with the uncontested divorce) doesn’t sign a waiver, he’ll be able to see the other documents, and even sign the final decree, prior to its being submitted to the court.

You do not both have to file the paperwork.

If I want an uncontested divorce hearing, can I have one?

Yes, though I don’t know why you would! It’s more expensive, because it requires the attorney time to appear in court.
Some courts require you to appear for an uncontested divorce, especially if you’ve lived separate under the same roof for any period of time during your separation period. (Virginia Beach Circuit Court is like this!) So, even if you might not choose to do it this way, you may find that, in your case, with your facts, its required.

Still, it’s no big deal. That part hasn’t changed. It’s just more expensive.

Can I change the terms of the separation agreement in the uncontested divorce?

You could, but not unilaterally. If you want to change something from your separation agreement, you’ll need his signature on the final decree. And, no, having a waiver won’t suffice in this case. He only agrees to have the already agreed-upon terms entered without further notice; he doesn’t agree for you to change things.

So, if you want to change things, you’ll have to draft a final decree reflecting those changes, and have it signed by your husband to signify his agreement.

An uncontested divorce by affidavit is, in many ways, ideal. Its easier and less expensive, if – potentially – anticlimactic. We submit the documents to the court, and the judge reviews them. When he grants the divorce, and enters it, you’re none the wiser – at least, not until your final divorce decree winds its way back to your attorney’s office. Then, you get a call or an email from the office where you find out you’ve been divorced since last Tuesday!

Maybe it sounds a little weird, but its also a significant improvement. It saves time and money, and keeps the court’s docket open for things that really require a court appearance.

For more information, or to request a copy of one of our books or free reports, give our office a call at 757-425-5200.