Virginia divorce complaint

Posted on Sep 21, 2016 by Katie Carter

If you have already gotten a copy of our free Virginia divorce book, “What Every Virginia Woman Needs to Know About Divorce,” you’ve seen the Virginia divorce complaint I’ve copied here below. If you HAVEN’T gotten a copy of our free Virginia divorce book yet, you should go ahead and request one now (you can request one quickly and easily by clicking this text here), and you’ll get an electronic version of the book to your email address right away. Open it, and you’ll see the Virginia divorce complaint I’ve copied here below. (If you live in our immediate geographic area and also want a hard copy, you can request one—you’ll get an email about it. We’re happy to send hard copies.)
So, anyway, here’s the Virginia divorce complaint you may or may not have seen. If it’s the first Virginia divorce complaint you’ve ever seen, that’s fine. Take a minute to read it now.



v. Case No.: _________________



COMES NOW the Plaintiff, Joan A. Smith, by counsel, and for her complaint against the Defendant (Husband), states as follows to-wit:

1. The parties are Husband and Wife, having been lawfully married on June 20, 1995 in Virginia Beach, Virginia.

2. There were two children born of the marriage, namely Rebecca I. Smith, born October 30, 1997, and Jason W. Smith, born April 19, 1999; there were no children born to either party and adopted by the other, nor adopted by the parties.

3. The Plaintiff (Wife) is a resident and bona fide domiciliary of the Commonwealth of Virginia and has been for at least six months preceding the filing of the suit for divorce.

4. The Plaintiff (Wife) resides in the City of Virginia Beach and the Defendant (Husband) resides in the City of Virginia Beach.

5. The parties last resided as husband and wife at 1234 Main Street in the City of Virginia Beach, Virginia.

6. The Defendant (Husband) is a member of the Armed Forces of the United States.

7. Both parties are of sound mind, over the age of 18 years, sui juris, and neither party is incarcerated in a mental or penal institution.

8. On January 10, 2016, without just cause or provocation, the Defendant (Husband) deserted the Plaintiff (Wife) and the parties have been living separate and apart, uninterrupted and without marital cohabitation since that date and there is no likelihood of reconciliation.

9. That since the separation of the parties, the Defendant (Husband) has continuously bothered, molested, and harassed your plaintiff (Wife) to the extent that your Plaintiff (Wife)’s and the children’s health and well-being are being impaired.

10. That the Defendant (Husband) has been guilty of cruelty toward the Plaintiff (Wife), causing reasonable apprehension of bodily harm in that the Defendant (Husband), over a period of many months physically abused, threatened, humiliated, and degraded the Plaintiff (Wife) and subjected her to his violent and uncontrolled fits of temper, terrorizing the household; Defendant’s (Husband’s) conduct has completely deposed the Plaintiff (Wife) as a wife, rendered the marital state intolerable. Specifically on December 30, 2015, Defendant (Husband) pushed Plaintiff (Wife) up against a wall, causing her to fall, and on January 10, 2016, Defendant (Husband) threw a set of keys at Plaintiff (wife), which struck her in the left arm, leaving a bruise. Said conduct on the part of the Defendant (Husband) is tantamount to constructive desertion, and the parties have been separated continuously since that time without interruption and without cohabitation and there is no likelihood of reconciliation.

11. That on diverse dates and locations including, but not limited to, December 29, 2015, and January 10, 2016, in Virginia Beach, Virginia, Defendant (Husband) has been guilty of adultery and/or sodomy with a person not your Plaintiff (Wife), whose name is Elaine B. Rushing, said adultery having taken place at the Notel Motel, located on Paramour Lane in Virginia Beach, Virginia. This adultery and/or sodomy has taken place within the past five years, without the knowledge, consent, or connivance of your Plaintiff (Wife), and the parties have lived separate and apart since January 10, 2016, and that there is no likelihood of reconciliation.

WHEREFORE, and for as much as your Plaintiff (Wife) is remediless, save in a Court of Equity, your Plaintiff (Wife) prays that the said Defendant (Husband) be made a party to these proceedings; that all proper process may be issued; that a divorce, A MENSA ET THORO pursuant to § 20-95 of the Code of Virginia, 1950, as amended, be decreed your Plaintiff (Wife), to be later merged into a divorce A VINCULO MATRIMONII at the expiration of one year’s separation on the grounds of desertion and cruelty pursuant to § 20-91(6) and adultery pursuant to § 20-91(1) of the Code of Virginia, 1950, as amended; or, in the alternative, that a divorce A VINCULO MATRIMONII be decreed to your Plaintiff (Wife) on the grounds of a one year separation pursuant to § 20-91(A)(9)(a) of the Code of Virginia, 1950, as amended; that the Plaintiff (Wife) be awarded attorney fees pursuant to § 20-103 to go forward with the suit both temporary and permanent, and Court costs; that the Plaintiff (Wife) be awarded custody of the children born of the marriage of the parties; that the Plaintiff (Wife) be awarded money for the support, maintenance, and education of said children; that the Plaintiff (Wife) be awarded temporary and permanent spousal support or a reservation of right; that the Defendant (Husband) be denied spousal support; that the Defendant (Husband) be required to maintain health and major medical insurance on the Plaintiff (Wife) and children; the Plaintiff (Wife) seeks an injunction against the Defendant (Husband) from bothering and harassing and otherwise interfering with the Plaintiff (Wife); that the Defendant (Husband) be restrained from contacting the Plaintiff (Wife) at home or at work, and from coming onto the premises where the Plaintiff (Wife) lives or works; that the Defendant (Husband) be restrained from discussing the divorce around the children of the marriage, and that he have no unrelated guests of the opposite sex when the children have overnight visitation with him; that Plaintiff (Wife) seeks “equitable distribution” of the “marital property,” monetary award, civilian or military retainer, and any other retirement pension, if any, pursuant to § 20-107.3 of the Code of Virginia and allocation of marital debt; for an injunction against the Defendant (Husband) requiring that he preserve his estate so that it will be forthcoming to meet any Decree which may be made in this suit, including an injunction enjoining and restraining him from disposing of any property, marital or otherwise, without court order; that the Plaintiff (Wife) be awarded exclusive use and possession of the marital residence so that she may reside there with the children; and that the Plaintiff (Wife) have such further and other relief in the premises as the nature of her cause may require or the Court in equity may deem meet and proper.

Joan A. Smith

State of Virginia
City of Virginia Beach, to-wit:
Before me, the undersigned notary public in and for the aforesaid City and State, personally appeared Joan A. Smith, who, after first being placed under oath, swore that the allegations contained in the foregoing Complaint are true to the best of her knowledge this ____ day of _________, 20__.
Notary Public
My commission expires: _________________________


Of counsel

Kristen D. Hofheimer
Hofheimer Family Law Firm
1604 Hilltop West Executive Center
Suite 300
Virginia Beach, Virginia 23451
(757) 425-5200
(757) 425-6100 (fax)

That’s it. That’s a Virginia divorce complaint.

So, what actually is a Virginia divorce complaint? What does it do, and when might I see one in my case?

A Virginia divorce complaint is a legal document that formally opens up your divorce case with the local circuit court. Before a Virginia divorce complaint is filed, though you may be negotiating a resolution, you don’t actually have an open case.
In Virginia, the plaintiff spouse (the spouse who files first) files the Virginia divorce complaint, which is then served by a sheriff or private process server on the defendant spouse (the spouse who files second, or answers, the complaint). Once you’ve been served with a Virginia divorce complaint, you (or your husband, if you filed first) have 21 days to respond—if you don’t, the court can move forward with no further notice to you.
At what point might you file a Virginia divorce complaint? That’s a good question. In this case here, we might file the complaint immediately, because we’re alleging fault based grounds (specifically, adultery and constructive desertion). In Virginia, you can’t file for divorce until you have grounds, whether fault or no fault. Since grounds in a no fault divorce are based on the period of separation (six months if you have no minor children AND a signed separation agreement, otherwise one year), you can’t file your complaint for divorce until the period of separation has run. In a fault based divorce, on the other hand, you can file immediately (though, unless you prove adultery, you’ll still have to wait a year before your divorce is finalized) because your grounds exist at the time of filing.

What’s interesting about this Virginia divorce complaint? What is the basic anatomy of a complaint?

Jurisdictional and background information

It’s a good question. A Virginia divorce complaint may look, at first blush, like a boring document (and maybe it is boring to you) but it’s actually very important, and it has to include specific things.
In this Virginia divorce complaint, you’ll notice that the first seven points provide background information. They show that the court has jurisdiction, gives the length of the marriage, tells whether or not there are children (in this case, there are), and asserts that both parties understand the proceedings.

We also have to specify whether or not either of the parties are members of the armed forces (to see whether the Servicemembers Civil Relief Act applies). It’s basic stuff, as you can tell—but it’s also important.

Grounds for divorce (and supporting information)

A complaint also sets forth the grounds for divorce, including background information. We don’t have to PROVE fault based grounds exist when we file; we just have to show that we have a reasonable belief that the grounds exist. So, for both adultery and constructive desertion (again, we’re alleging two different grounds for divorce here; one would have been sufficient if that’s all we had), we set forth our allegations, and provide our background information. In this way, sometimes complaints can be pretty “juicy” documents, full of details designed to sway the court in our favor from the beginning.
Keep in mind, though, that if your husband filed the complaint first, and he has included allegations that are false, misleading, unflattering, or defamatory, you’ll have a chance to deny them in your answer (the document that the defendant spouse files in response to a complaint)—and allege your own grounds for divorce, if you have them. This doesn’t prove anything; it just opens up the case with the court and lays the groundwork for what the attorney plans to show the court later on down the line.
If you were using no fault grounds for your divorce, on the other hand, your complaint wouldn’t be very juicy. It would just say that, based on the grounds of having been separated for the statutory period, you’d like a divorce.

Request for relief

In order to ask the court to award you anything, you have to ask them to do it. You can’t get, for example, spousal support if you don’t ask for it in your complaint. You’ve got to ask for everything – child support, custody, equitable distribution, spousal support, attorney’s fees, etc – or else the court doesn’t have the authority to award it to you later.
If your husband has filed first, don’t be alarmed if he’s asking for everything, too. He wants to make sure he requests everything, too (just like you do), because, if he doesn’t and the situation changes, he can’t go back and ask for it later. Just because he asks the court to award him spousal support doesn’t
mean that it’s a serious request, and it also doesn’t mean that, even if he asks, that the judge would actually award it.
The same warning goes for you – just because you ask for something doesn’t mean you’ll get it. The Virginia divorce complaint included here is a good one, an interesting one for sure, but it’s only the start of a case. What happens later on down the road can be affected by all sorts of different things, and there’s never any guarantee when it comes to what the judge might order.
If you’ve been served with a Virginia divorce complaint, you should know that you only have a limited amount of time in which to act. The time to do something is definitely now! Likewise, if you’re ready to move forward with your divorce, you’ll want to get up to date, Virginia specific advice to make sure you’re making the best decisions possible. For more information, or to talk to one of our licensed and experienced Virginia divorce attorneys, give our office a call at (757) 425-5200.