The Virginia divorce process can basically go in one of two ways: either your divorce is litigated and it follows the steps set by the local circuit court, or it is uncontested and you negotiate a separation agreement. It is possible to have some sort of combination of the two, where you either start out in court and end up settling, or you start out trying to negotiate and you end up in court, but in most cases you can tell relatively early on where your case is headed. Just to give you an idea, though, most people end up with separation agreements. Why? Well, it’s considerably cheaper, easier, and less time consuming.
In a litigated divorce, the process is much more complicated. If you have certain fault based grounds (to learn more about fault based grounds, click here), you can file for divorce immediately. You file for divorce by filing a complaint, which is a document that opens up your case with the local circuit court, provides your grounds (whether fault or no fault), and asks for specific relief. In a divorce, you’ll ask for everything you can possibly ask for (division of the property, spousal support, child support and child custody), because if you don’t ask for it at the beginning the court doesn’t have the power to award it later.
After you file, your husband will respond in a document called an answer. This is very similar to the complaint. In it, your husband will respond to your allegations about his fault, if you’ve alleged fault, provide his own grounds for the divorce, and ask for relief himself. He will also ask for everything he can (even spousal support!), because if he doesn’t he can’t ask later. It doesn’t mean he has grounds to ask for it, or that the court would award it, it just means his attorney is protecting himself from a malpractice suit later just in case.
After you’ve filed, we can schedule what is called a pendente lite hearing. Pendente lite is a Latin phrase that means “while litigation is pending,” and this hearing is a temporary support hearing designed to help both of you survive while the divorce is pending. This is your first actual appearance in court in front of a judge! At the pendente lite hearing, the judge isn’t interested in hearing about fault at all; he just wants to address spousal support, child support, child custody, and a few other things on a temporary basis.
Next, you’ll go through the discovery process, which is how we’ll get all the information we need from your husband. We’ll ask for documentation regarding income, retirement, investments, real property, debt, personal property, taxes, insurance—pretty much anything and everything.
From that point, your attorney will probably encourage you to start thinking about a separation agreement but, if you don’t, you can expect that your attorney (or your husband’s attorney) will set a trial date. Even though you may have a date scheduled, that doesn’t mean that you’ll just wait until trial to see what happens. You’ll also probably have a four way settlement conference (with you, your attorney, your husband and his attorney) to see if you can reach an agreement before trial. You may also be required by the court to attend a judicial settlement conference (where a retired judge will help the four of you try to settle) in an attempt to settle before trial. Depending on your jurisdiction, you may have some other procedural requirements during that time.
Finally, you’ll have your trial. At trial, the judge will listen to all the evidence, and will divide things as he (or she) sees fit. This is absolutely the final word, unless you appeal your case.
In an uncontested divorce, on the other hand, there are much fewer procedural steps. Since you’ll agree to not pursue fault-based grounds and reach a decision regarding the division of all your assets and liabilities, you won’t need a judge to do it for you. If you have an attorney and your husband has an attorney, normally one or the other of you will draft a preliminary agreement, and you’ll negotiate back and forth until you’ve got a document that you both agree to sign. Your attorney will help advise you about what a good agreement is for you.
After your agreement is in place, you wait until you’ve been separated for a year (or six months if you don’t have minor children) and you’ll file for divorce with your complaint. All the courts do things a little bit differently, but at that point it’s mostly a matter of paperwork. In some courts, you have to schedule an uncontested divorce hearing (which is a brief, 10 minute appearance) or you can proceed with a divorce by affidavit.
If you have any questions about the Virginia divorce process, or what kind of divorce might be best for you, feel free to contact our office at (757) 425-5200. We can help point you in the right direction, and give you pointers on what to expect as you move forward!