If you’re here, you probably already know that you have to be separated for one year to get a divorce in Virginia. The only two exceptions are if (1) you have a signed separation agreement, and (2) you have no minor children born or adopted by the parties of the marriage, and if (and this is a big if) you are able to get a divorce on adultery grounds. In the first scenario, you can get divorced after just six months of separation. In the second – the adultery one – you technically qualify for an ‘immediate’ divorce, but in practice that almost never happens.
For most people, a separation of at least a year is almost certainly in the cards. By national standards, this is a fairly long period of separation, but also it hardly matters because the law in Virginia is what will govern the terms of your divorce if you last lived as husband and wife in the Commonwealth.
So, what can you do in the meantime? Can an attorney even represent you while you’re separated?
Although you don’t need an attorney to be legally separated, you can use your period of legal separation to your advantage during your divorce. It can look different in different types of cases, so let’s look at them all.
Contested cases where you have fault based grounds
You can’t file for divorce until you have grounds, so you must either use fault based grounds or, if your divorce is no fault, wait until the one year of separation has lapsed. In a no fault scenario, your period of separation makes up your grounds of divorce.
In a fault based divorce, your fault based grounds make up your grounds of divorce. We have adultery (sodomy and buggery), cruelty, apprehension of bodily hurt, desertion, abandonment, and felony conviction grounds for fault-based divorce in Virginia. If any of those applies to you, you can file before your one year is up. (You should also be aware, though, that you can’t finalize your divorce before the year is up, but that doesn’t mean that nothing will happen in your case.)
After you’ve filed, you can do important things, like have a pendente lite hearing, conduct formal discovery, set a judicial settlement conference, and so on. All of these things are designed to help move your case forward towards either a final divorce trial (where the judge will decide how your assets and liabilities will be divided) or an agreement (where you and your soon-to-be ex will decide how your assets and liabilities will be divided).
In a divorce, most people are ultimately able to make the decision about how to divide their assets and liabilities themselves, but that doesn’t mean that it’s always an easy or straightforward path to get to that place. In many cases, for one reason or another, the judicial process is needed – usually because one party refuses to agree or negotiate an agreement, one party is unaware of the extent of the assets or liabilities, or one party doesn’t have the financial means to make it through the divorce without receiving either child support or spousal support in the meantime.
During your one year period of separation, you can determine whether it’ll be possible to get an agreement in place or it’ll become clear that you need to set a trial, which can be done soon after your one year separation has lapsed. By hiring an attorney and keeping things moving forward, you ensure that you’ll be able to do this as close as possible to your one year date.
In uncontested, no fault cases
There’s no way around it: without fault based grounds, you’ll certainly have to wait the year. But you can still get a lot done!
In the meantime, between the beginning of your date of separation and your one year date, you can work on negotiating your separation agreement. Once it’s signed, which you can do at any point throughout the process, you can really begin to live as though you’re single and unmarried. You’re technically still married until you are divorced, but – because the agreement has been signed – you may start to receive child or spousal support, follow your custody agreement, sell your house, and take care of the various odds and ends that will help you begin your post divorce life.
For many people, signing an agreement really makes them feel divorced in the sense that there’s nothing left to really fight about. They can then go on to pick up the pieces and rebuild their lives in the way that they want, comfortable in the knowledge of what will happen to them financially, and so then the entry of the final divorce decree is sort of an anticlimactic moment.
While drafting an agreement is technically something you can do on your own, it’s somewhat difficult, so you may be better served having an attorney to represent your best interests to advocate for you throughout the process.
So, even though you haven’t been separated for a year (and you’ll almost certainly need to be before you can finalize your divorce), that doesn’t mean that you can’t keep the ball rolling, so to speak. You don’t have to, but if you wait until the year is up, then you’re adding more time on top of an already fairly long waiting period, especially if you and your soon-to-be ex don’t reach an agreement particularly quickly or easily. There’s no sense staying married longer than you already have to, especially once you’ve made the decision to end things.
Divorce can be confusing. There’s a lot to learn! For more information, request a copy of our divorce guide for Virginia women or consider attending our monthly divorce seminar. You can visit our website at hoflaw.com or give us a call at 757-425-5200 for more information.