If you want to get a divorce, you will either have to negotiate a separation agreement with your soon-to-be ex husband, or face him in court and let a judge decide for you how your assets and liabilities will be divided. Though we often talk about different “kinds” of divorce, these are really the only two options.
A separation agreement is a legal contract that formally divides all the assets and liabilities in your marriage pursuant to an agreement between the two of you. When attorneys talk about different kinds of divorce, they’re usually referring to the process of getting a separation agreement in place. There are a number of different ways to do this, but, really, they’re just different means to the same end.
What are the different ways you can get a separation agreement?
You can negotiate a separation agreement through mediation, negotiation, or even collaborative divorce. If you choose mediation, you and your husband will meet with a mediator who will help the two of you reach a resolution. If you negotiate your separation agreement, you can either hire an attorney to represent you or you can negotiate it yourself with your husband without an attorney. Your attorney will draft up an agreement, submit it to your husband’s attorney (or, if he is not represented by an attorney, directly to your husband himself), and communicate by email, telephone, or through a settlement conference until a resolution is reached. If you choose to represent yourself, be careful—don’t sign just anything.
However you choose to go about the process, ultimately the goal is to end up with an agreement between the two of you and a signed contract in your hands. Though there is a lot of flexibility when it comes to how your contract can be drafted, there are a couple similarities between these documents, too. For one thing, in a separation agreement, you agree to move forward with a no fault divorce. That doesn’t mean that there actually isn’t any fault, it just means you’ve agreed not to pursue it. It also means that you can’t file for divorce in your local circuit court until you’ve been separated for a year or more. It also means that your divorce is uncontested—meaning that you’ve come to an agreement on how everything will be divided, and there’s nothing left for the court to decide. This almost always the cheapest, easiest, most painless way to get divorced. These days, you don’t even have to go to court to actually get divorced. You can just submit a signed affidavit with your testimony and the testimony of your corroborating witness, the judge signs it, and you’re divorced.
The only other alternative is to get divorced by going to court. This means that you and your husband never actually reach an agreement about how your assets and liabilities are going to be divided, so you need a judge to help do it for you. This is probably the most complicated way to get divorced, because you’ll have to go through a number of different steps before you actually get to the divorce trial. It’s probably also the most expensive, because, although technically you are allowed to represent yourself, you’ll probably have to hire an attorney to represent you, and all the different procedural steps take time and cost money.
Fault or No-Fault Divorce?
If you’re getting a litigated divorce, you could have either a fault or no-fault divorce. If you have a fault-based divorce, you can file and get into court more quickly, which will save you time. If you have a no-fault-divorce, on the other hand, you’ll have to wait until after you and your husband have been separated for a year to file. For more information on when you can file in your divorce, click here.
Contested or Uncontested Divorce?
If you’re getting a litigated divorce, your divorce is contested, which means that you and your husband can’t reach an agreement on how everything will be divided. You only have an uncontested divorce when you can reach an agreement outside of court.
The divorce process in Virginia
Unlike in a separation agreement case, where there are lots of different options to reach the end result, all litigated divorces look a lot alike. They follow a lot of the same procedural steps, and, in some cases, the steps are required by the court, so there’s no skipping out. This is definitely a “one size fits all” kind of approach to divorce.
So, what are the steps? Well, first you’ll file a complaint, which is the document that opens up your divorce with the court. In it, you’ll allege your grounds (whether fault or no fault), state any specifics necessary (if you’re alleging fault you’ll provide more detail), and ask for what you want out of the divorce. He’ll file an answer, where he’ll either admit, deny, or plead the fifth about your allegations against him, allege his own against you, and ask for what he wants out of the divorce. You may have a pendente lite (temporary support) hearing, if necessary in your case. After that, you’ll go through formal discovery, which is the process through which you’ll learn about all the specific assets and liabilities in your marriage that need to be divided. After that, the procedure depends a little on the court—different courts require different things. But you’ll likely have settlement conferences, pre-trial conferences, and other hoops to jump through before you actually get to your divorce trial. At your trial, the judge will hear all the evidence and, ultimately, make a decision regarding how everything will be divided.
Your Divorce, Your Choice
You’re responsible for your own divorce, and for choosing the option that best suits your needs. There are advantages and disadvantages to both. You’ll have to decide for yourself which way you want to go, but, really, these are the only two choices. You can either sign a separation agreement, or you can ask a judge to make the decision for you.
To ensure that you’ve made the best decision for yourself, it’s a great idea to speak to an attorney about your unique situation. Call our office today at (757) 425-5200 and schedule a confidential one hour appointment with one of our experienced divorce and custody attorneys.