There’s really no such thing as a “quick” or “immediate” divorce. In Virginia, you have to be separated from your husband for a specific period of time before you can even file for divorce (and, of course, once you file, it still takes time before you’re actually divorced). If you don’t have children (or your children are all grown) AND you have a signed agreement, you can file for divorce after six months of separation. Otherwise, you’ll have to be separated from your husband for a full year before you can get divorced.
Do you always have to wait a whole year to even file?
In certain situations, you can file early. If you’re alleging a fault-based ground, for example, like adultery, cruelty, apprehension or bodily hurt, desertion, abandonment, or felony conviction, you can file for divorce straightaway. Except for cases of adultery (we’ll talk more about adultery in a minute), you’ll still have to wait to actually get divorced until you’ve been separated for a year, but you can file early.
For no-fault divorces, on the other hand, you’ll have to wait until your one year (or six months) of separation is over before you can file. Keep in mind that no fault doesn’t mean that there aren’t any fault based grounds, it just means that the parties have agreed to move forward without considering fault. (Most divorces are ultimately granted as no-fault.)
Are there any advantages to filing for divorce early, even if I can’t get divorced for a year?
Yes! The main advantage to filing on fault-based grounds is that you can get into court more quickly. First, you’ll file your complaint. This is the legal document that officially opens up your case with the court, sets forth your grounds, and asks for what you want out of the divorce. Your husband will probably file an answer and counterclaim, which is his version of the same document. He’ll either admit, deny, or plead the fifth in response to your accusations (since adultery is a crime in Virginia, he can plead the fifth if we allege it), set forth his allegations against you, and then ask for what he wants out of the divorce. Then, your case has really begun.
At that point, you can schedule a pendente lite hearing. Pendente lite is a Latin phrase that means “while the litigation is pending.” It is a hearing designed to help make sure the bills are paid during the divorce. At this point, you can ask for temporary spousal support and child support. You can also ask for other kinds of relief, but the main point here is to make sure that both parties are financially capable of surviving the next year. You can’t do this if you have a no fault divorce and, as a result, can’t file your divorce until the one year of separation is up (well, you could, but since you can just move forward with the rest of your divorce, there’s really not time for this step). That’s one advantage.
Another advantage to filing for divorce is that the next step is formal discovery. Discovery is the process through which we find out all about the assets and liabilities in a marriage. It’s a lot of work for both sides, but we can find all sorts of information this way. If you’re worried that he’s hiding assets or that there’s something else he’s not telling you, you’ll want to conduct discovery. If you have a no fault divorce, usually there is no formal discovery; we rely on the information provided to us by the other side.
What are the disadvantages to filing a fault based divorce? It sounds like I want to go through discovery and have my pendente lite hearing!
The main disadvantage to filing a fault based divorce is that it is often incredibly expensive. All the different procedural steps take time and cost money, particularly in attorney’s fees. You’ll have to pay your attorney to prepare for the pendente lite hearing, and you’ll have to pay your attorney to prepare discovery, as well as to go through it with a fine toothed comb once your husband’s attorney sends back his responses.
A fault-based divorce also tends to make things between a soon-to-be ex husband and wife much more antagonistic. It becomes less and less possible to resolve things amicably the longer you fight things out in court. If you have children together, this is a particular concern, because you’ll have to continue to co-parent long after the divorce is over.
It’s probably safe to say that almost all divorces these days are no fault. That’s not to say, of course, that a divorce can’t start out as a fault-based divorce (and you go through the pendente lite hearing and then discovery) and then switch over to a no-fault divorce. That happens all the time. But, just to keep it in perspective, most people do tend to find these disadvantages to be pretty significant.
What does it take to allege fault grounds?
You can’t just make up your fault based grounds so you can file. To file on fault, you’ll have to have a reasonable belief that these things occurred, and you’ll probably have to provide some details. For example, if we’re alleging adultery, we’d usually list the initials of the alleged paramour, and the date and location of the affair.
Remember, too, that alleging fault isn’t enough. While it will allow you to file (and have your pendente lite hearing and discovery), you’ll still have to PROVE to the judge that your fault based grounds exist at trial in order to actually have a divorce granted on those grounds.
Will I get more of our stuff because he’s at fault?
Probably not. Filing on fault doesn’t exactly give you a golden ticket. Some fault grounds are weaker than others (desertion and abandonment, for example, are considered pretty weak), but it doesn’t seem to make much difference. Although the judge CAN take fault into account when determining how the marital assets and liabilities are divided, fault doesn’t usually come into play that much. It’s a mistake to think that it’s worth spending the extra money in attorney’s fees to allege and, later, prove your fault based grounds because you’ll probably get more of the marital assets. In most cases, it doesn’t matter.
What happens in cases of adultery? When can I file if he cheated?
In Virginia, adultery qualifies you for an “immediate” divorce. Still, “immediate” doesn’t really mean the same thing to the court as it does to you. An “immediate” divorce means that you can file for divorce and schedule your divorce trial right away. Still, in order to actually have a trial, you’ll have to go through a number of different procedural steps. Remember, the court prefers it when parties settle their affairs among themselves, so it’s going to ensure that you have plenty of opportunities to discuss settlement with your husband before you get to your trial. Different courts have different requirements, but it’s not unusual for settlement conferences and pretrial conferences (at the very least) to be required before you can actually have your trial.
Not to mention that most of the local circuit courts are pretty backed up, and it’s hard to get a spot on the docket. In Virginia Beach, for example, it’s not uncommon to set trial dates 6-9 months out just because there are no openings available. It definitely won’t be happening “immediately.”
If you have an attorney, she will probably recommend that you don’t schedule your trial until your one year of separation is up, anyway. Why? Well, don’t forget, you’ll still have to prove adultery. What happens if the judge feels that your proof isn’t enough? If you haven’t been separated for a year, you go right back to square one—because the judge can’t grant a divorce without satisfying the requirement that you’re separated for a year. What a waste of time and money! Not to mention, you’ll have to do it all over again once the one year is up. If you file after the one year is up, on the other hand, even if you can’t prove adultery, you can ask for a no fault divorce based on the grounds of having lived separate for a year or more and you can still get divorced.
As you can probably tell, it’s not quick or easy to get divorced, but a lot can depend on your specific circumstances. To talk to an attorney about your unique situation and how long it might take you to get divorced, call our office at (757) 425-5200.