How to file for Virginia divorce

 

You’re ready. You’re done. That’s it. It’s over. So, what next?

Every divorcing person ever reaches a point where they decide that, no matter what, it’s just over. No amount of therapy or marriage counseling or even a marital agreement can fix what’s wrong. It’s just over.

And, really, that’s fine. I wrote an article the other day about how many marriages end in divorce, and the key takeaway is that divorce is there to protect you, not to trap you. Though there are some specific procedural hurdles you have to jump through before you can finalize your divorce, the fact that you’re getting a divorce (as opposed to a cohabiting couple that just separates) is a good thing.

I mean, obviously, marrying Prince Charming and living happily ever after is the best case scenario, but, if your current hubby isn’t exactly Prince Charming and there’s no way to turn your existing marriage into anything resembling your idea of happily ever after, well, then there’s no shame in calling it quits.

There are no rewards for staying in an unhappy, unsuccessful, unfulfilling (or worse – abusive!) relationship. It’s not even better for the kids. But don’t take my word for that; feel free to talk to a therapist or Google some articles about the impact of divorce (versus staying together unhappily) on children.

Divorce protects your ability to receive a portion of the retirement accounts, pensions, real estate, bank accounts and other assets of the marriage. It also opens the door to spousal support (or alimony, whichever word you prefer to use).

But, like, how do you do it?

It’s kind of a complicated question, but I’ll try to answer it simply. In Virginia, you can either get divorced by negotiating a signed separation agreement, or by putting on a whole trial in front of a judge. All of the assets and liabilities in your marriage will have to be divided, either by you or by a judge, so nothing can get finalized until that happens.

You’ll also need grounds – so, fault based or no fault based. You can’t file until you have grounds, so if you’re using fault based grounds you can’t even file for divorce until your one year (or 6 months) is up. If you’re negotiating a separation agreement, your divorce is no fault – so there’s no filing at all until (1) the year is up and (2) your agreement is signed (or, again, 6 months, if you qualify).

If you use fault grounds, you can file right away – or, at least, you can file as soon as your grounds exist. If he’s cheated on you, you can file on adultery. If he’s beat you, you can file on cruelty. And so on. With the exception of adultery, though, which theoretically qualifies you for an immediate divorce, you’ll still have to be separated for a year (there is no 6 month separation period allowed when you file on fault) before you can finalize.

So, it’s not just a question of HOW you file for divorce, it’s also a question of WHEN you file for divorce.

You file for divorce by filing a complaint with the court. A complaint is a fancy legal document, called a pleading, that officially opens up the case with the court. It also lays out your allegations, establishes the statutory requirements for your divorce, and requests your relief.

You’ll also have to pay a filing fee to the court, which varies by jurisdiction, but it’s usually somewhere between $85-95. Some courts require other documents, like a civil action cover sheet and/or a child affidavit to be filed with the complaint.

But that’s it. You file a complaint with the circuit court where you last lived as husband and wife. You’ll take your complaint to the clerk and pay your filing fee.

When do you do it? When your grounds exist. So, if you’re alleging fault, as soon as you have grounds. If you’re using no fault, once your one year (or 6 months) of separation is up. At that point, if you have a separation agreement, you can finalize your uncontested no fault divorce, or you can set a hearing if you haven’t been able to resolve your case yet.

Can you file for divorce on your own, without an attorney?

If you’re asking whether it’s allowed, the answer is clearly yes.

If you’re asking whether it’s advisable, the answer is not so clear. I’ve seen do it yourselfers make BIG mistakes in divorce and custody cases, so it’s hard for me to be comfortable telling you that I think you can do it.

And that’s not to toot my own horn, either. It’s not like I’m just so clever no one else could possibly do it. You could! But you’d probably benefit from some training. You’d certainly benefit from reading the statutes, the case law, and the local court’s rules – because it can vary a lot from court to court and issue to issue. It’s not “one size fits all” and without making a real effort to educate yourself, you could be cutting off your nose to spite your face.

Sure, attorneys cost money. And it’s hard to have that money, in light of everything else going on in your personal life. But is it easier to come up with $5,000 now (just an example; a retainer in your case, especially if it’s no fault, could be much less – I’m just illustrating a point here) or to cope later with knowing that you walked away with significantly less than you were entitled to just because you didn’t know any better?

Like, what if you’re one of those women whose husband has told you the military ten year myth – that if you haven’t been married for ten years, you don’t qualify for an interest in his pension. Even all this years later, I STILL hear women who tell me, “Oh, I know I don’t get that.” See how dangerous that is? That woman would draft an agreement for herself cutting herself so short! Those kinds of mistakes can add up, and can cost you dearly – in the short and long term.

I don’t advise anyone to do their divorce pro se. Not even other lawyers! (You know what they say – or maybe you don’t– the lawyer who represents himself has a fool for a client!) You could, but it’d probably be a mistake.

If you’re determined NOT to hire an attorney, at least have one review your documents. Meet with them. Ask them questions. Make sure, before you take any steps, that you haven’t drafted something that cuts you off at the knees without even knowing.

It’s impractical to suggest that you would go to law school, read all the statutes, or suddenly have a working knowledge of the last ten years’ worth of case law in Virginia. It’s too much, without doing it every day. But you COULD at least consult with an attorney, regardless of whether you hire her to represent you, to make sure you’re not making any glaring mistakes.

It’s not a perfect solution. It will still require a lot of effort on your part. But it may be that it’s the best answer for you.
For more information or to request a copy of our free divorce book, give our office a call at 757-425-5200.

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