What you need to know

Whether you’re already separated or have only just begun to consider separation and/or divorce, you’re in the right place.

Making strategic, informed decisions is important, whether you’re in the early stages of considering your options, you’re on the verge of scheduling your initial consultation, or you’ve got a case in progress.

It’s an emotional decision, and you’re only human. You’re worried and overwhelmed and scared and angry and sad, and probably a million more things, too. But you need to take some time to understand the divorce process in Virginia, including your rights and entitlements, ideally sooner rather than later.

What Virginia women need to know about divorce

We’re not suggesting you go to law school or anything crazy, but you should have a basic idea of how divorce in Virginia works.

In Virginia, you can get divorced in one of two ways; either you negotiate and sign a separation agreement, or you go to court.

Depending on which path you go down, things can turn out pretty differently for you – in terms of the time it takes, the amount of money it costs, and the impact it all has on your children and your blood pressure — and it’s important for you to understand the implications of any choices you make.

A great place to start is by requesting a copy of our free divorce book. We also have one for military divorce, too, which applies whether you’re an active duty military servicewoman (thank you for your service!) or a military wife.

A big part of the problem with divorce is that you don’t know what you don’t know – or, worse, you think you know things that you don’t (like the annoying military ten year myth that keeps popping up, no matter how we try to debunk it!) – and so it can be hard to formulate questions. If you get a better sense of your bearings, and learn a little more about the process and how it works, it’ll lead you to questions that will help you develop your understanding, get a sense of your options, and, ultimately, make big decisions about how to move your case forward.

I read the free divorce book. What should my next steps be?

After the book, we highly recommend you consider attending our monthly divorce seminar. It’ll help give you an overview of the divorce process and, perhaps even more importantly, allow you an opportunity to ask questions directly to one of our licensed, experienced, women-only Virginia divorce and custody lawyers.

It’s an online seminar (thanks, COVID-19) – but you’ll learn all about the divorce process and even have an opportunity to ask questions (live!) to one of our licensed, experienced Virginia divorce attorneys for women only.

How does the Virginia divorce process work?

The more you know, the better your choices will be. There is truly no “one size fits all” in divorce, so you’re smart to start gathering information now.

It’s really pretty simple, though – at least in theory. You can only get divorced in a couple of different ways. Either you negotiate a separation agreement, or you go to court. (Or, in some situations, you negotiate an agreement and go to court, but you only litigate the issues on which you couldn’t agree.)

All of the marital property has to be dealt with in order for a judge to be able to sign off on a final divorce decree, so either you and your husband decide how to divide the things, or the judge will decide for you.

There is more than one way to get from point A (separated) to Point B (happily divorced), though. An in-court divorce follows a predictable path – filing a complaint, the defendant filing an answer and counterclaim, a pendente lite hearing, discovery, and so on. Though each case may not look exactly the same, the same elements are present in virtually every litigated case.

In a case where the parties are trying to negotiate an agreement, though, there are more options. Whether you try to do it yourselfnegotiate an agreement with lawyers on each side, participate in the collaborative divorce process, or use a mediator, the end result – the separation agreement – is the same. It’s really just different paths to the same destination, though the experience of it can be quite different depending on the path you choose.

Do we have to have grounds for divorce?

Yes. One of the most important things to understand is the difference between contested, uncontested, fault and no fault divorce.

Contested refers to a case where the parties weren’t able to reach a decision about how all the assets and liabilities would be divided; uncontested refers to a case where the parties ultimately were able to reach an agreement about how all of their assets and liabilities would be divided.

Contested refers to a case where the parties weren’t able to reach a decision about how all the assets and liabilities would be divided; uncontested refers to a case where the parties ultimately were able to reach an agreement about how all of their assets and liabilities would be divided.

A fault based divorce is a kind of contested divorce where you use specific grounds – adultery, sodomy, buggery, cruelty, apprehension of bodily hurt, desertion, abandonment or felony conviction – to get in to court. With the exception of adultery, which technically allows you to get an “immediate” divorce, all of the grounds of divorce require one year of separation before the divorce can be finalized. The characteristics that make up each of these grounds are different, but the end result is the same: once you have grounds, you can file for divorce. Using fault can get you into court more quickly (since, as you will see, in a no fault divorce you’ll use your period of separation as your grounds, which means that the time period, whether 6 months or a year, must have already elapsed before you can file), which is especially helpful if you need temporary child and/or spousal support determined at a pendente lite hearing! There are other reasons you might want to file on fault, too – like if you don’t know the full extent of the assets and liabilities, he won’t cooperate with signing a written agreement, etc.

Important note: There is no such thing as ‘agreeing’ to finalize a divorce on fault! Because fault based grounds for divorce carry various civil and criminal penalties, you must go to court and prove your grounds exist to the satisfaction of a judge. ALL fault-based divorces are contested!

A no fault divorce, on the other hand, is based on your period of separation. In Virginia, you must be separated for one year before you can finalize an uncontested divorce. The only exception is that if you have (1) a signed agreement, and (2) no minor children, you can finalize in 6 months – but you must meet both of those two criteria to do so.

A no fault divorce can be either contested or uncontested. After all, just because you don’t have fault based grounds (or, for whatever reason, have fault based grounds but decide not to move forward using them as the basis for your divorce action) doesn’t mean that you can reach an agreement. You may choose to litigate only the division of assets, but not the grounds for divorce.

You may also have an uncontested, no fault divorce which means that you are moving forward on no fault grounds (your period of separation) and that you have resolved all of your issues by negotiating a separation agreement.

What’s a separation agreement?

A separation agreement is a legal contract that divides all the assets, liabilities, and responsibilities in your marriage between you and your husband. It handles everything, from real and personal property (like the house and all of your furniture), to custody, visitation, and support, if you have children, as well as spousal support, retirement accountscredit card and student loan debt, tax issues (like who gets to claim the child or children as a dependent on the tax return), and more.

Having a separation agreement in place means that you can file for an uncontested, no fault divorce. (Alternatively, you would go to court, which means that your divorce could be based on either fault or no fault grounds, but that it would be contested–meaning, essentially, that you couldn’t agree on everything beforehand, and have to have a judge decide for you.)

You can draft it yourself (though I’d caution you to be very careful if you plan to do so), negotiate with attorneys on either side, hire collaboratively trained attorneys, or work with a mediator (again, I recommend proceeding with caution here) – there are really no rules, except that your agreement must be signed in order to mean anything.

Be careful, though – once you sign it, you really can’t un-sign it. Though, in some cases, we can modify agreements (by executing another agreement), it’s almost virtually impossible to do without the consent of both parties. If you’ve signed a bad agreement, the court will almost certainly enforce it. You can’t just say that you didn’t read it, that you didn’t understand, or that you felt forced to sign. So, before you sign, make sure you read it, you understand, and you’re choosing to sign in full awareness of what your rights and responsibilities are under that agreement. If you have questions or aren’t sure, you should consult an attorney!

What if we can’t reach an agreement?

That does sometimes happen. People get hung up on specific issues – especially custody and spousal support – and that can derail settlement.

You may choose to take things to court, or he may choose for you. There’s really no way to move a case past a stalemate, if the parties aren’t able to move forward, without litigating. We can try to speed it along, by making a counteroffer, scheduling a judicial settlement conference or a 4 way settlement conference, or something else, but it does take two to negotiate an agreement. It’s worthless without two sets of signatures on it, after all.

But don’t worry. Even if you file for divorce, whether on fault or no fault grounds, you can use the court system to move your case forward. If things start to move again, and you and he become more able to negotiate, you don’t have to stay on the contested track forever. You can negotiate a settlement at any point, even up to the moment before the judge calls your case on the day of your final trial. In fact, settlement ‘on the courthouse steps’ is something family law lawyers talk about all the time because it happens a lot! Not necessarily literally on the steps, but in the hallways or in one of the conference rooms outside the courtroom – it happens!

And, if you do need to have a trial, well, that’s what the court system is there for. With an experienced attorney on your side, you’ll be able to navigate the system effectively, and get the results you need to move forward to your happily ever after.

And that’s the goal, right? To get you from where you are now to where you envision starting your brand new life. We’re here to help you figure out what that looks like, and what it’ll take to get you there.

You’re in the right place, and you’re asking the right questions.