When do you file your divorce complaint in Virginia?

Posted on Oct 7, 2013 by Katie Carter

In Virginia, the complaint is the document you file to begin your divorce case. It’s a very important document, because it sets forth your grounds and asks the court for relief. In your complaint, you’ll ask the court for all the important things you’ll want out of your divorce: custody, support, and equitable distribution. Remember: if you don’t ask for it, the court doesn’t have the authority to give it to you later.

Depending on the type of divorce you pursue, though, you may file this document at very different times in the process.

Filing a complaint in a no fault divorce

If your divorce is no fault, you’re going to have to wait until you and your husband have been separated for the statutory period before you file. In Virginia, that means you’ll have to separated for a year if you have minor children, or six months if you have no children (or your children are already grown). Up until that point, even if you’re negotiating an agreement, your divorce hasn’t officially begun. In the court’s eyes, your divorce begins when you file that complaint with the court.

Most divorces are no fault, mostly because it’s cheapest and easiest that way. If you choose to allege fault-based grounds, you’ll have to at least go to court to prove that your fault grounds exist.

A no fault divorce can be contested or uncontested, meaning that you can go to court and have a judge determine how your assets and liabilities will be divided, or you can agree between yourselves in a document called a separation agreement. Either way, without fault grounds, you can’t get into court before that period of separation is up.

For more information on when you’re separated, click here.

Filing a complaint in a divorce with fault grounds

For many fault based grounds, like adultery, you can file for divorce immediately, which means that you’ll file your complaint long before your separation period is up. Why? Well, in these cases, it’s often necessary to get in to court early on to establish support while the divorce is pending. The fault grounds increase the urgency.

Even though you may file on fault grounds, it is very common that couples decide later to move forward on no fault grounds. Remember that, just because you filed for divorce and alleged, for example, adultery, at the beginning of your divorce, doesn’t mean you’ll ultimately have to have a hearing to determine whether you can prove it—you can always switch it over to no fault and sign a separation agreement, if you choose.

One of the unique things about adultery is that you also qualify for an immediate divorce. Usually, though, it still takes at least a year. For one thing, there are a lot of procedural steps in place before you can get to court, and it takes time to get through them all. For another, your attorney will probably recommend that you wait until your year is up, because you run the risk (if you get to court sooner) that the judge will find you haven’t provided enough evidence to prove adultery, and your divorce will be denied. If you wait until the year is up and you can’t prove adultery, you can still move forward on no fault grounds.