Virginia Divorce by Affidavit
I found out, 9 years ago today, that I passed the bar. I’ll never forget the day. In that time, I’ve handled a LOT of divorces.
A lot of uncontested divorces (LI), in particular. Contested divorces, too, but, in so many cases, even if we start out in court, eventually the parties end up able to reach an agreement about how to divide their assets and liabilities. There are a lot of reasons for this, but the cost of attorney’s fees, and the advantages of separation agreements (especially the amount of control they give you over how all of your assets will be divided, being chief among them.
In nearly a decade of experience (which is still hard for even me to believe), things have changed. That’s always the case of course; there are legislative updates passed every year that go into effect on July 1, but some of the updates have more or less effect on the way that we practice family law.
One of the things that has changed in my years in practice is related to the uncontested divorce. Specifically, the procedure involved in having an uncontested divorce granted. It used to be that we had an uncontested divorce hearing at the end of the procedure – once the agreement was signed, and the period of separation had been satisfied.
An uncontested divorce hearing is a simple, ten minute hearing where the judge determines that the conditions required by the statute for an uncontested divorce have been met, and after which he signs and enters the final decree.
An uncontested divorce hearing was never a big deal. It was quick, it was easy, and it was attended only by one party and a corroborating witness. Yes, that’s right – both parties are not required to attend.
These days, though, there are very few uncontested divorce hearings. Though some jurisdictions do still require them (looking at you, Virginia Beach Circuit Court), especially in cases where the parties lived separate under the same roof for a period of time during the parties’ separation, most of the time we finalize uncontested divorces by affidavit.
What’s an affidavit?
A good question! An affidavit is basically a written statement, prepared and signed under oath, that’s offered in court.
In the case of an uncontested divorce, it sets forth the specific requirements of the statute needed for a person to get an uncontested divorce – residency, the marriage, the separation, the names and dates of birth of the children, whether any party is in the military, whether the parties are of sound mind, whether the wife is known to be pregnant, etc – and signed by one party. It’s signed, under oath, and under penalty of perjury.
The court accepts the affidavit to establish the statutory requirements associated with a divorce, and to grant the divorce – even without the party attending a court hearing to officially offer the testimony to the judge.
What’s the procedure for a divorce by affidavit?
Affidavits are just one part of the uncontested divorce packet. A number of documents need to be received by the court, including (but not limited to) copies of the separation agreement, a final decree, a VS4, a confidential addendum, child affidavits, QDROs, etc.
Both the party moving for the uncontested divorce and that party’s corroborating witness have to sign notarized affidavits under oath. These are included with the final divorce packet, and make up the “testimony” that the judge needs to hear to grant the divorce.
In a divorce by affidavit, both the moving party and her corroborating witness sign statements under oath, under penalty of perjury, establishing that the requirements for divorce are met, including the period of separation.
It’s easy – the affidavits, that is! You fill in the affidavits, sign in the presence of a notary, and then you (or your attorney, if you’re represented by counsel) send the affidavits in with your uncontested divorce packet.
Yes, you heard me right – technically you can do it yourself. But an uncontested divorce isn’t necessarily the easiest thing to do without counsel, so you’ll want to be prepared.
Can I have an uncontested divorce hearing if I would prefer?
Sure. If you prefer, though I’m not entirely sure why you would.
How will I know my divorce was entered, if I’m not there to see it?
The mail. After a divorce is entered by affidavit, the decree is entered. The clerk will mail it back to you – or your counsel, if you’re represented by an attorney – if you’ve provided a self addressed, stamped envelope in your final divorce packet. (They won’t cover the postage or the envelope, if you don’t include it.)
If you didn’t provide an envelope, or if you want to check daily to see whether your decree was entered before the mail arrives (hey, I get it), you can check case status online here.
For more information about uncontested divorce hearings, or to get any more information about divorce in Virginia, request a copy of our divorce book, military divorce book or set up a confidential consultation by calling our office at 757-425-5200.