Your Virginia Divorce Complaint
In Virginia, a divorce formally begins when one party files a complaint with the court. Until you file your complaint, the court has no idea that you’re separated, talking about divorce, or, really, anything other than one of millions of other happily married couples. The complaint is the document that opens up your divorce case, and brings certain things within the jurisdiction of the court.
Depending on the type of case that you’re involved in, your complaint could be filed at very different times. If your divorce is fault based (meaning that you’re using adultery, sodomy, buggery, cruelty, apprehension of bodily hurt, desertion, abandonment, or felony conviction as your grounds, or reason, for your divorce), then you can file a complaint right away. If your divorce is a no fault divorce (meaning that you either don’t have fault based grounds, or you do have fault based grounds but you’re choosing not to use them), you have to wait until you’ve been separated for the statutory period before you can file. In Virginia, you have to be separated for a year before you can file for a no fault divorce, or six months if you meet two criteria: (1) you don’t have minor children, and (2) you have a signed separation agreement already in place.
No matter when you file your complaint, the procedure is pretty much the same. You file, you have him served, and he files a response to your complaint. If he files first, then you are served, and you file a response to his complaint. At that point, your divorce has finally begun, and you have the benefit of the court’s help in moving your case forward.
So, what does a complaint say?
In your complaint, if you’re the one who files, you’ll say a couple of specific things. First and foremost, you’ll establish that the court has jurisdiction, so you’ll answer a couple of easy questions—like when and where you were married, whether you have children and what their ages are, where you live, and whether you or your husband are members of the armed forces. Easy.
Then, you’ll have to set forth your specific grounds for divorce. If you’re alleging fault based grounds, you’ll name your specific grounds, and then provide any supporting evidence that you have. When you file for divorce, you don’t have to conclusively prove that your grounds exist, you just have to allege enough information it is reasonable to file for divorce using these grounds. For example, if you were filing for divorce using adultery as your grounds, you would need to give the court some details, including the initials of the paramour, and the approximate date and location of the affair. If you have more evidence, like text messages, emails, or cards that were exchanged between the two of them, we sometimes use that, too. Later on, at trial, we’ll have to actually prove that these grounds exist, but up until then, we’ll just have to set forth enough evidence that your claim looks credible.
Additionally, we’ll also ask the court for the specific relief we want. We’ll ask for everything, from spousal support to child support (if you have children), full custody, and equitable distribution. It’s important that we ask for everything at the beginning of the case because, if we don’t, then we can’t go back and ask for it later.
Does it matter if I file first?
Whoever files for divorce first files the complaint, and is then referred to as the plaintiff. Whoever responds to the first person’s complaint files a responding document called an “answer” or an “answer and counterclaim,” and is then referred to as the defendant.
In civil cases, the labels “plaintiff” and “defendant” don’t have the same meaning as they do in criminal cases. (In case you aren’t quite sure, “civil” is just a kind of catch all that means any kind of case that is not criminal. A divorce is a civil case.) It doesn’t mean that one of you is the good guy and one of you is the bad guy. Really, it doesn’t mean anything at all, except that one of you initiated the case, and one of you responded to the case that was initiated by the other. In some jurisdictions, plaintiff and defendant are referred to instead as petitioner and respondent.
It really doesn’t matter who files first, because you’ll both have the opportunity to present your case, and there’s no prejudice to you just because your husband happened to file first.
If I file first, what happens?
If you file your complaint first, you’ll have to have it served on your husband. In Virginia, a divorce complaint has to be served—which means that either your husband will be served personally (a process server or sheriff will hand the divorce papers to your husband in person) or have service posted (usually, affixed to the front door of his home).
Once your husband has been served, he has 21 days to respond. Whether he reads the paperwork or balls them up and throws them, unread, in the trash, he still has just 21 days to respond. The clock starts ticking right away, and, if he doesn’t respond, you can move forward with the divorce without further notice to him.
If he files first, what happens?
If he files first, your case will progress in much the same way. He’ll file a complaint, and he’ll set forth his grounds for divorce, answer the jurisdictional questions, and then he’ll ask for the relief he wants. Just like you, he’ll ask for everything—spousal support, child support, custody, and equitable distribution. Even if you’ve been a stay at home mom, he will ask for everything. Why? Well, the same reason you did! If he doesn’t ask for it now, he can’t go back and ask for it later. Maybe he doesn’t want it. Maybe he couldn’t qualify to receive it even if he did want it. It doesn’t matter. If he doesn’t ask for it now, even if circumstances change later on he can’t get it, whatever it is.
It’s something that is in his best interests and, in addition, its something that protects his lawyer from a big, fat malpractice claim. So, if you get served, and you find that your husband is asking for absolutely everything in the world, don’t panic. Don’t cry. It’s normal, and it’s just the way things are done. It doesn’t mean he will get it, and it definitely doesn’t mean he actually wants it. It’s just the way it works.
Just like if you filed first and had him served, from the moment you’re served you have 21 days to respond. If, at this point, you don’t already have a lawyer, it’s probably a good idea to get one—and fast. Your clock will be ticking from the moment you’re served, and you’ll want to have time to talk things over and strategize with your attorney. You’ll want to talk about your goals and your plan for the litigation, and work together with your attorney to come up with a comprehensive plan for how to move your case forward.
Most importantly, you’ll want to get your answer filed.
What do I put in my answer?
Your answer is a complaint in reverse. It’s really a very similar document, but with a few minor alterations. Since your husband already set forth the jurisdictional stuff, his grounds, and the specific relief he’d like to receive, you’ll just have to look at what he said in his complaint and either admit it, deny it, or, if he’s suggested something for which you could be convicted of a crime, plead the fifth.
You’ll admit or deny everything he said jurisdictionally, so, just in case he made a mistake somewhere, you can correct him. Usually, these things are just admitted, because they are factual, like the date of the marriage, and not a matter of opinion. Your blood won’t start boiling when you read these things.
Then, however, you’ll see what your husband claims as his grounds for divorce. If he has claimed fault based grounds, your blood will probably start to boil at this point. You can deny anything he said that is incorrect, or plead the fifth if he has alleged something that is criminal.
After you’ve had a chance to go over his allegations, you’ll have the opportunity to make a counterclaim. This is your chance to set forth your accusations, and tell the court what your grounds for divorce are. Again, just like if you had filed the complaint yourself from the beginning, you’ll have to provide some evidence to substantiate your claim. You don’t have to prove it (not yet, anyway—the time for that will come later), but you’ll have to provide some information to prove to the court that you have a reasonable basis for making these claims.
After that, you’ll file your answer and counterclaim with the court, and your case is officially opened.
Are there any cases where you might not file an answer?
In an uncontested, no fault divorce where there is already a signed separation agreement, sometimes a complaint is served with a document called a waiver. After the waiver is signed, the party filing the complaint is allowed to move forward with scheduling and obtaining an uncontested, no fault divorce without further notice to the other party.
Once a separation agreement has been signed, there’s really not much left to do. The terms of your divorce will be what is set forth in your agreement, and not much that you can do can change that. Either you, or your husband, if he’s the moving party, will file for an uncontested no fault divorce, and your complaint will simply say that you have no fault grounds. So, the complaint will say something like you’re asking for a divorce “on the grounds of having lived separate and apart for a period of one year.” That’s not inflammatory, and it won’t make your blood (or his) boil to read it. It’s exactly what you expected. Even in the section where he (or you) ask for what he (or you) wants to receive out of the divorce, it just says that everything should be awarded pursuant to the separation agreement signed by the parties.
If you find yourself in this position, talk to an attorney before you sign a waiver to make sure that you’re not putting yourself in a risky legal situation.
What happens after a complaint and an answer have been filed?
After your complaint and answer have been filed, your case is officially open to the court. If you’re in the midst of a contested, fault based divorce, your next step may be to file discovery requests.
Discovery is the process that we use most often to figure out what assets and liabilities a couple has. Sometimes, we use it to figure out other things, too (like whether or not a spouse is committing adultery, or whether someone is a suitable candidate for primary custody of a child)—but, basically, we can use it to get information and documents from the other side to help us figure out our case.
If your divorce is uncontested, you’ll probably move straight into setting your case for an uncontested divorce hearing. In some jurisdictions, you may not even have to appear in court at all—you may just be able to file an affidavit. Since you already waited the full year (or six months) to file, you’re ready to go.
Your divorce begins at the moment that you file your divorce complaint, and it’s best to be prepared ahead of time for all the things that can happen. If your husband moves more quickly than you and files first, it’s important that you know that the clock starts ticking from the moment you’re served. If you don’t act quickly enough, you can seriously hurt your case. Protect yourself and speak with an experienced Virginia divorce and custody attorney before it’s too late. Give our office a call at (757) 785-9761 to speak to someone now.