File a Divorce

In Virginia (and, I’m pretty sure, just about everywhere else) the divorce process formally begins with the court when a complaint is filed.
That doesn’t mean, though, that the first thing you need to do is march down to the courthouse and file a divorce. In fact, in many cases, you don’t file anything until the end of the divorce, and not the beginning. So, if you’re at the very beginning of the process, you may be getting a little bit ahead of yourself. Let’s take a step back and talk about how the divorce process can often unfold before you ever file a divorce complaint.
In Virginia, there are basically two ways you can get divorced: either with a signed separation agreement negotiated between the two of you and entered by the court, or in front of a judge who decides how everything will be divided. These two different paths can look different (and for more information on the different “types” of divorce, click here), depending on the facts of your case and the decisions you make about how to move your case forward, but the end is the same. Either you sign an agreement dividing everything, or the judge decides how everything will be divided.
Depending on which option you choose – whether you negotiate on your own and decide, or whether you leave it up to a judge – depends on how and when you’ll file your complaint for divorce.

But don’t you file for separation first?

In Virginia, you don’t file for a legal separation. The court isn’t involved at all. In Virginia, you are legally separated when one of you (1) forms the intent to leave the marriage, and then (2) starts cohabitating.
You can be separated and living in the same home, if you choose. (Though there’s no question that it’s riskier than if you separated and lived in completely separate physical spaces.) Still, at least one of you has to have decided to separate for the purpose of ending the marriage, and then ended any cohabitation.
Cohabitation is a fancy legal word we use to describe when two people live together as husband and wife. When you cohabitate, you represent yourself to the world as a married couple, and you behave that way – both inside and outside of the home. So, you cook dinner for each other. You grocery shop for each other. You do each other’s laundry. You clean up after each other. You sleep in the same bedroom. You have sex. (Though sex isn’t the only determining factor; courts have held that there are plenty of unmarried people having it and plenty of married people who aren’t.) Then, outside of the home, you go to dinner. You attend the kid’s soccer games. You go to church. You hold hands. You wear wedding rings. You talk about each other and say, “My husband…”
Separated people don’t do that. They represent themselves to the world as a separated couple. Charlie Hofheimer (the founding divorce lawyer of our firm) used to joke that it wouldn’t be inappropriate to take out a newspaper ad advertising your new separated status for all the world to see. That’s a bit dramatic, of course, but the principle there is sound: you should be acting like a separated couple, and your friends, family members, and acquaintances should know about your separated status. I know it’s uncomfortable; if you were raised in the South (like me!) you cringe at the thought of airing your dirty laundry for the world. But, if you’re separated, you let people know it.
You don’t, though, have to file anything with the court so, once you’re separated, the court doesn’t know about it. In fact, to the court, until you file for divorce, you’re just another married couple.

When do you file a divorce, then?

The answer to this question is easy. You file a divorce when you have grounds to file a divorce.
In Virginia (and pretty much everywhere else), you have to have grounds to get divorced. In Virginia, we have fault based grounds and no fault grounds. You have to pick one or the other.

Fault Based Grounds for Divorce in Virginia

In Virginia, the fault based grounds for divorce are adultery, sodomy, buggery, cruelty, apprehension of bodily hurt, desertion, abandonment, and felony conviction. (For more information about the different types of fault based divorce and what they are, click here.)
If your husband is guilty of any one of those grounds (or you have a reasonable belief that he might be), you can file a divorce right away. (Why? Because you have grounds, and they exist now.)
You don’t have to prove your grounds in order to file for divorce, but you will have to prove them (to the satisfaction of the judge) in order to get your divorce granted on the basis of those grounds. With the exception of adultery where you qualify for an immediate divorce , all of the other fault-based grounds still require that you be separated for a year before your divorce is finalized. Still, you can file right away, which can be advantageous for a number of reasons. For one thing, you can have a pendente lite hearing and conduct formal discovery.
Just because you file for a divorce on fault-based grounds doesn’t necessarily mean you’ll have to go all the way through to a contested divorce trial (though it certainly can mean that). In most cases, a final agreement is ultimately negotiated anyway, but filing a fault-based divorce can move things along if you’re in a pretty difficult situation (like where your husband has cut you off from all access to the money, or has said that he absolutely will not participate in negotiating a separation agreement).
Contested, fault-based divorces are among the most expensive divorce there are, because of the time in the court system and your divorce lawyer. Pendente lite, discovery, pre-trial motions, settlement conferences, and trials don’t come cheap; in fact, it’s really quite the opposite. But, still, you can file for divorce quickly if you’ve got fault-based grounds, and you can figure out where to go from there—whether you continue to pursue your fault grounds, or whether you transition over to a no-fault divorce later on.

No-Fault Based Grounds for Divorce in Virginia

In a no-fault divorce, on the other hand, you can’t file a divorce immediately. Why?

Because you don’t have grounds yet! In Virginia, you can get divorced for any reason, good or bad, or no reason at all. The catch? You have to be separated for the statutory period in order to do it.
In Virginia, to get divorced, you have to be separated for one year—unless (1) you don’t have any minor children, and (2) you already have a signed separation agreement, in which case you can divorce in as little as 6 months.
You won’t have grounds until you’ve completed your period of separation, so you can’t file until that year (or six months, if you qualify) is over.
The good news? Though that may sound like a long time to wait, it’s really no longer than people in fault-based divorces have to wait. (Remember that, unless they’re using adultery as their grounds, they’ll still have to wait the full year to get divorced. And, often, even if they ARE using adultery grounds, they’ll wait a year anyway.) During your year, you’re not sitting around twiddling your thumbs. You’re negotiating your agreement. So, once that year (or six months) is up, you can file for divorce right away, and finalize the thing as quickly as possible. Usually, we can finalize in as little as 2-4 months.
Even though it may feel like a pain to have to wait, you can make the time work to your advantage so that you’re ready to move forward with your uncontested divorce as soon as possible after your separation agreement is signed and notarized.
Even better news? Separation agreement cases are typically the most cost effective, with most people spending between $2000 and $5000. Contested divorces, on the other hand, cost far, far more—often, as much as $15,000-20,000 or more. (And that’s per person, folks.)
For more information on filing for divorce or to schedule an appointment with a divorce lawyer to discuss your options, give our office a call at (757) 425-5200 or request a consultation here.

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