What if one of us doesn’t want a Virginia divorce?

Posted on Jul 20, 2015 by Katie Carter

Divorce is hard, no matter what the circumstances.  However, when one of you doesn’t want to get divorced, it can be even more difficult.
Before I go too far, let me tell you, at the outset, that, whether you want it or not, there’s not a whole lot you can do to stop a divorce.  You don’t both have to consent; if one party wants to get divorced, that’s enough.
That being said, though—just because you can’t STOP the divorce from happening doesn’t mean that you can’t slow it way down, cause a lot of trouble, and end up costing your spouse (or yourself, if you’re not careful) a lot of extra money.
Whether it’s you or your husband who doesn’t want the divorce, it can be really helpful to have an idea of how things work.  That way, you can start making the decisions that support your end goal, whether it’s to drag things out a little bit to buy yourself some extra time or just to get yourself out as quickly as humanly possible.

So, how do you get divorced?

This is the most important question, because, once you understand the how of getting divorced and start to understand how the process works, you can start to figure out how to accomplish your objectives.
Basically, you can get divorced in one of two ways: you can negotiate an agreement, or you can litigate.

Negotiating an Agreement

You can get divorced with a separation agreement (which can also sometimes be called a number of other things, including a stipulation agreement, a marital and separation agreement, a marital and separation stipulation agreement, or even a property settlement agreement), which basically means that you and your husband (on your own, with attorneys, or with a mediator) got together to discuss how everything should be divided.  You reach an agreement and then sign it.  Afterwards, you can move forward with an uncontested (meaning that you’re not fighting over how things will be divided), no fault divorce (meaning that, whether you’ve got fault grounds or not, you’re choosing NOT to use them and move forward on the grounds that you’ve been separated for the full statutory period).  Generally speaking, separation agreement cases are the (1) cheapest, (2) quickest, and (3) easiest divorce cases out there.
If you’re following me, you’re probably already wondering a couple of things.  “If he doesn’t want the divorce, what hope do I have that we’ll reach an agreement?”, or “No way I’m signing that; I still want to save my marriage!”
You’re probably right.  In most cases, where one party or the other doesn’t want the divorce, separation agreements just don’t work.  As you probably already noticed, separation agreements require some cooperation.  You can’t get one in place just by writing it and sending it to your husband; he’s going to have to agree and sign it, too.  Without that cooperation, negotiating an agreement may not be possible—at least at first.
If you’re the one who wants out, though, don’t despair.  Lots of times we don’t start out with an uncontested, no fault divorce, but the other party eventually realizes that the time and money wasted fighting just isn’t worth it.  At any point in your divorce, you can switch over from a contested (meaning that you can’t agree on how to divide things) divorce to an uncontested one.
These days, it’s probably safe to say that most divorces are uncontested, no fault agreements achieved by negotiating a separation agreement.  But that doesn’t mean it has to be!

Litigating Divorce

If you can’t get a separation agreement in place, your only other option is to litigate.  (Though you should know that it is also possible to negotiate an agreement handling some of the issues, and litigate on the other issues regarding which you could not reach an agreement.)
Litigation is difficult, because it’s time consuming and expensive.  It’s also stressful for most people who go through it, even if they want the divorce.  When you litigate a divorce, you put on your case in front of the judge and then, ultimately, the judge decides.  The judge will decide exactly how to handle anything that you haven’t already agreed to handle in a specific way.
In some ways, it can come as a relief.  You don’t have to negotiate with your husband, especially if he’s being unreasonable.  The judge will listen and make a decision that, in his or her opinion, is “fair” and equitable.  It may not be the answer you wanted to hear, but it will be done (unless you appeal) and final.  Neither of you can do any more arguing.
It’s also hard.  Hard to know that your personal issues will be placed before a judge, who will make a decision without knowing much of anything about you, your husband, your children, or your life.  Risky, too, because you don’t know, at least not until it’s too late, how much the judge favors your side.  What if things don’t turn out at all the way you hoped?  It happens.
Litigated divorces happen when cases are contested.  They can be fault based or no fault based.
If one spouse doesn’t want the divorce, you’ll probably have to start with litigation.
Let’s talk about this two ways: first, we’ll discuss what the process looks like if you’re the one who wants the divorce; next, we’ll discuss what you should be doing if you’re the one who doesn’t want the divorce.

If you’re the one who wants the divorce…

Filing a Complaint

If you have fault based grounds (adultery, sodomy, buggery, cruelty, apprehension of bodily hurt, desertion, abandonment, or felony conviction), you can file for divorce right away.  If you don’t have fault based grounds, you’ll have to use no fault grounds—which means that you need to be separated for a full year before you can file.
Filing the divorce, though, is what you’ll need to do to begin to move your divorce forward—with or without his approval and consent.  Filing the divorce officially opens up your case with the circuit court; until that time, the court doesn’t know that you’re anything other than a perfectly happy married couple.
Once you’ve filed the complaint, your divorce is opened with the court.  At that point, it’s time for your husband to be formally served with the complaint, and then he has 21 days to answer.  The other party responds to your complaint by filing a response, usually called an answer, and often combined with a counterclaim.
If your husband does nothing (as in, he does not respond by filing an answer and/or counterclaim), you can move forward without further notice to him.  So, that’s one way to resolve things.
If he does respond, however, (which, let’s face it, is pretty likely), you’ll at least have the power of the court to help you deal with him.  He won’t be able to just disappear or refuse to respond or do anything at all that you request of him in order to begin moving your case forward.  He can drag his feet, but the train is already moving and he can’t jump off.

If he’s the one who wants the divorce…

If your husband wants the divorce, on the other hand, you don’t have to do anything until he does.  He can present you with drafts of separation agreements and talk to you about divorce until he’s blue in the face.  Until he puts his money where his mouth is and goes ahead and files that complaint, there’s no divorce and nothing that you absolutely have to do.  You can ignore him, refuse to sign draft agreements, or try to convince him to try marriage counseling.  Basically, you can do whatever you want, because no divorce is pending, and there’s no deadlines counting against you.  Yet.
Once he files for divorce, though, you’ll have 21 days to respond from the date you get served with the complaint.  Those 21 days are super important, and you’ll definitely want to make sure that you respond within that time period.  Otherwise, he could move forward with the divorce with no further notice to you.
To some extent, up until that complaint is filed, it’s totally okay to be an ostrich, burying your head in the sand.  After that point, though, you’ll have to take action.  If you don’t respond to the complaint by filing an answer and counterclaim, the only person you’re hurting is yourself.  In some cases, your attorney can make a motion to allow late pleadings, but that’s a risk that, in my opinion, is not worth taking.
There are deadlines that apply to specific parts of the case (like discovery, for example), and sometimes court dates will be set—with or without your permission.  Things will begin moving forward, and you can’t really stop it from happening if your husband is dead set on moving forward with the divorce.  Still, you can talk to your attorney about your options, either for slowing things down, or just for negotiating so that you walk away with the things that you want and need most to rebuild your life post-divorce.

Do I need an attorney?

I wish I could tell you that you could handle it on your own, but I think the reality is that, in any case that is litigated, you really need an attorney.  When you and your husband have interests that are so dramatically opposed (like that he wants a divorce and you don’t, or vice versa), things are probably going to be even more complicated.  It’s better to go into your divorce with someone there to help guide and advise you so that you don’t make any missteps that hurt your case later.
Divorces are a little extra tricky when you add another component, like the fact that one of the spouses involved doesn’t really want a divorce at all.  It’s important that you get solid legal advice before you make any big decisions.  Remember that courts are not generally very forgiving when it comes to “mistakes” you may have made; the court generally assumes that you’re an adult who understands the importance of signing a legal document.
If you have any questions or want to talk to one of our attorneys, give us a call at (757) 425-5200 to schedule a confidential one hour consultation.