What happens in an uncontested divorce?

Posted on Aug 14, 2019 by Katie Carter

Basically, in Virginia, you can get divorced in one of two ways. Either you guys duke it all out in front of a judge, who ultimately rules on how everything will get divided in your case, or, alternatively, you and your husband reach an agreement regarding how everything will be divided.

In the latter case – the one where you guys reach an agreement – your divorce will be uncontested, meaning that the judge does not have to render any decisions, since you’ve already done that for yourself.

After the dust has settled on your separation agreement and you’ve been separated for the statutory period (in Virginia, one year, unless (1) you don’t have minor children, AND (2) you’ve got a signed agreement, in which case you must separate for 6 months) you can file for and finalize your uncontested divorce.

It’s a pretty easy peasy process at that point (you’ve already done most of the work when you were negotiating your agreement), but I still get a lot of questions about what’s involved. There are a lot of formal documents that need to be drafted and filed with the court, so it’s an important step of the process – and not just because it’s the only way you’ll actually get divorced.

Let’s discuss a little bit about what’s involved in an uncontested divorce.

Filing a complaint

The court doesn’t know about your separation agreement, so it’s time to clue it in. After all, your separation agreement is the document that will be filed along with the final decree in your divorce that will spell out how everything will be divided.

If you haven’t already, it’s time to file a complaint for divorce. Your husband could file first, too, but since there are more steps involved when you’re the moving party, I’m going to cover it from that perspective. If you file your complaint for divorce (which does not mean that you’re “complaining,” by the way, it’s just the formal document you use to open up a case with the court), you’ll have to either have it served on your husband, he’ll have to sign a waiver (accepting service and waiving future notice of the proceedings), or his attorney will have to accept service on his behalf.

After that point, he has 21 days to file an answer to your complaint, and then it’s time to move the rest of the case forward.

What else needs to be filed to get an uncontested divorce?

There are several documents that are filed with the court in most uncontested divorces. Specifically, you’ll need affidavits from both you and your witness (unless you’d prefer to go to court, in which case you and your witness will need to appear personally – almost no one chooses to do this anymore) testifying to the information you alleged in your complaint. Your corroborating witness will testify that you and your husband have separated for the statutory period, that you intended to be separate, and that he or she would have reason to know that you separated and remained separated.

Who can be a corroborating witness?

Almost anyone, but I’d caution you against using your adult children (hey, this will divorce their parents – it’s probably not a good idea to involve one of them) or any new boyfriends. A better person to use would be your mom, a coworker or neighbor, your best friend, a sister, an aunt, or someone else that you’re close to. There’s no requirement that your corroborating witness be a woman; you could use you dad, brother, uncle, or other close family friend, too.

You’ll want it to be someone that you see fairly frequently, who comes to your home, and who would have intimate knowledge of these personal details of your life.

They’ll need to be willing to testify, via the affidavit, and then sign it in front of a notary. That’s it! It’s pretty easy.

Final decree of divorce

You’ll also need a final decree of divorce. These can be simple documents, or they can be more drawn out. In our office, we tend towards the drawn out ones – specifically making sure that we include the most important details (retirement, spousal support, and custody/visitation/child support) in the decree itself. Even if it’s still in the separation agreement, these big three items we often copy and paste into the decree as well. Hey, clarity is important!

There’s a lot of required information in a decree, especially if support is involved, so it’s a very important document. It’s also one that’s fairly difficult to draft yourself, if you’re hoping to DIY your uncontested divorce. (Fair warning: I think it’s probably not a great idea.) If you try and your decree is rejected, though – never fear. Even attorneys get their decrees rejected; you can try again, or hire an attorney to help you move forward.

VS4, Confidential Addendum, and Child Affidavit

There are other things, too, that we have to file along with your decree. Specifically, the VS4 changes the way that you’re listed in the vital statistics records, the confidential addendum protects confidential information (like social security numbers) so that they are sealed and not a part of the public record, and the child affidavit lists the kids names and their addresses for the last 5 years.

Name Change Petition

If you want to resume your maiden name (or another previous name), now’s the chance to do it!  You’ll need to ask for it in your complaint for divorce, and file a motion for resumption of a former name along with your final decree.  The judge will enter it and, ba da bing, you’re no longer Mrs. Ex-Husband’s Last Name.

Retirement documents

Often, retirement documents get entered with the final decree of divorce as well. Qualified Domestic Relations Orders (QDROs) divide tax deferred accounts (like 401(k)s) without tax penalties, but you may also have an order to divide military retirement, a TSP, or a FERS account as well. In cases where there are pensions, too, documents are needed to effectuate the transfers agreed upon in the separation agreement.

Needless to say, this is one of the more important parts!

What happens next?

After you file the complaint and your husband responds (or signs a waiver), you file all the documents with the court. In an uncontested divorce by affidavit, no court appearance is required. So, the documents go to the court, they go in a pile, and the judge reviews them as he or she gets to them. The decree is entered, and goes back to your attorney’s office in the mail.

It’s an easy process, but there are often still a lot of questions, so it’s good to make sure you understand what is involved beforehand. All told, it usually takes 2-3 months, and most of that is because you have the 21 day period to wait for a response.

For more information or to schedule an appointment with one of our attorneys to get your uncontested divorce going, give our office a call at 757-425-5200.