Virginia Divorce and Custody: How long does it take?
If you have never been through a divorce or custody case before (and, for your sake, I hope you haven’t), you probably have a lot of questions about family law. When we take on a new case, it seems like every client asks the same question: how long is this going to take?
I understand! You’re living through what is probably one of the biggest periods of uncertainty in your life, and you’d like to know when everything is going to be finished so that you can get back on track. You’d like to put this all behind you, and you wonder at what point your case will stop feeling like it’s looming overhead.
It’s hard to guesstimate exactly how long your case will take. If you ask your family law attorney, you’ll probably get our favorite answer: it depends.
And it’s true. It DOES depend on a lot of different factors, some of which we (and you) have absolutely no control over. Attorneys are uncomfortable giving estimates that might turn out to be wrong, so they’re not very good about giving answers about how long your case will take. Even though you’re probably just looking for a ballpark answer (and, let’s be real, if you want to be more specific than that, I can’t really help you either, because, try as I might, I just can’t predict the future), your family law attorney may have a hard time answering.
Different cases take different amounts of time, depending on a number of factors—what type of case it is, what jurisdiction the case is in, who the attorneys are, whether your husband/child’s father is consistently difficult, and so on. Many of those things you can’t control. Many of those things your family law attorney can’t control, either. Still, I understand why you’d like to have an idea of how long your case might take, and I’m going to try to give you a ballpark answer.
In Virginia, you have to have grounds to get divorced. “Fault” grounds mean that a specific action on at least one party’s part led to the breakdown of the marriage. In Virginia, we recognize a number of different fault grounds—adultery, sodomy, buggery, felony conviction, cruelty, apprehension of bodily hurt, desertion, and abandonment.
Each fault based ground allows you to file for divorce immediately. With the exception of adultery, though, you’ll have to wait a full year before you can move forward with your divorce. That doesn’t mean that nothing is happening in your case; on the contrary, there are many different steps that can take place during the course of that year. You can schedule a pendente lite hearing, which will help you establish temporary child and spousal support, custody, visitation, and other things—like order a prohibition on having overnight guests while the minor children are present, give exclusive possession of the home to one spouse, disallow “wasting” (frivolous spending) of assets, and so on. You can conduct discovery (the process we use to figure out exactly what’s there to be divided). You can have a 4 way settlement conference or a judicial settlement conference. There are lots of different things that can happen. All of these things are designed to handle some of the more important work ahead of time, so that the judge doesn’t have to do it in the courtroom at the final hearing. In many situations, the case settles before the trial date—but not always.
In a case that settles, it’s very likely to settle before the year is up—which means that the case would go from a contested, fault based divorce to an uncontested divorce. If you’re using fault grounds, your case is automatically contested, so you’d have to go in front of the judge to argue and prove your grounds before you divorce could be granted. The case can’t move forward until the year is up (because no fault divorce requires a one year separation), but you can expect to be done with your divorce within a couple months of the one year separation date, provided that nothing unexpected happens.
If your case doesn’t settle, you’ll have a trial. It’s very difficult to know how long a truly contested divorce can take to go all the way through to trial—in some cases, it happens relatively quickly, but in others, it drags on. It really depends on the issues in your case, and how many things are being litigated. It will certainly take more than a year, but, in this type of case, almost anything is possible.
If you have adultery grounds, you actually qualify for an immediate divorce. That means that, if you can prove adultery, you can file on adultery grounds, get a trial date (although, of course, your trial date won’t be scheduled “immediately,” it will be scheduled according to the court’s docket), and get divorced. At least, that’s how it works in theory.
In real life, though, that’s not how it works. Like any fault based divorce, you have to actually prove that the adultery exists, and the burden of proof for adultery cases is harder to meet than in other types of cases. You have to provide “clear and convincing” evidence of the adultery, and it has to be corroborated by a third party (like the paramour or the private investigator you hired to watch your hubby). That’s a pretty tough burden to meet. In fact, it’s so tough that very few divorces actually get granted on adultery grounds each year.
If your family law attorney schedules your trial too soon, she is taking a big risk. Why’s that? Well, like I said, (1) you have to prove the adultery, and (2) you have to have grounds to get a divorce in Virginia. If you can’t prove the adultery to a “clear and convincing” enough degree (as far as the judge is concerned), then you don’t have grounds. Adultery isn’t your grounds anymore, because you couldn’t prove it. What can you fall back on? Anything else takes a year, so you can’t say, “well, never mind, then we’ll move forward on no fault grounds.”
What happens then? Well, then you don’t get divorced. So you would have to go all the way back to square 1. Either re-file using different fault based grounds, if you have them, or wait until you’ve been living separately for a year (or six months, if you don’t have minor children and you have a signed agreement already in place) to file on no fault.
In real life, family law attorneys don’t schedule the trial immediately in an adultery case; they just wait until the one year of separation is up before having a trial in an adultery case to prevent this from happening to their clients.
So, how long does all this take? Well, the bottom line is that, in all likelihood, it will take at least a year. But, like other contested divorces, the specific issues at play in your unique case affect exactly how much longer than a year it will take—and it’s difficult to guess ahead of time.
No Fault Divorces
If you don’t have fault grounds or choose not to file on fault, your divorce will be filed on no fault grounds, and no fault grounds require that you be separated for a certain period of time. Because of this, you can’t file right away.
If you and your husband sit down and have a conversation about the state of your marriage and decide that it’s time to get a divorce, you become separated. If there was adultery or cruelty or desertion, you could file for divorce right away. (Is there an advantage to this? Maybe, maybe not, depending on your situation. With a no fault divorce, on the other hand, you won’t have grounds until the period of separation has been completed, so you have to wait until that time has elapsed to file.
So how long do we have to be separated?
You divorce can’t be completed faster than the required period of separation. In Virginia, to get a no fault divorce, you have to be separated for one year before you can move forward—unless you meet a narrow exception. If you don’t have minor children AND you have a signed separation agreement in place, you can move forward with your uncontested, no fault divorce in just six months.
Bottom line: it’s going to take longer than the separation period, which will be either one year or six months, depending on your situation. How much longer? If you have a separation agreement in place on the day that you meet the separation requirement, you’ll probably be divorced in a month or two, depending on how backed up your local circuit court is. If your separation agreement isn’t in place, you can count on a month or two beyond the date that you get it signed.
I’ve seen separation agreements signed in a month or two, with very little negotiation, and I’ve seen them much longer to negotiate. It depends on how difficult you, your husband, and your respective attorneys are. Sometimes, we purposefully decide to drag things out—when a spouse is close to becoming a 20/20/20 spouse, for example (if you’re in the military, you know what that is; if not, don’t worry about it). So, even though in some extreme cases it can take several years to get a signed agreement in place, that’s usually because the parties agreed to do it that way. It’s not the norm. I think it’s safe to say that the average couple can get a separation agreement in place in 4-8 months, so it’s definitely possible to have that agreement in place on the day that you reach one year of separation.
Custody cases can come about in a couple of different ways. They can be part of an underlying divorce action. What I mean by that is that you have custody issues, but that you’re also getting divorced—so your custody issues will ultimately be resolved as part of your divorce.
If you’re not married to your child’s father, or if you are but aren’t getting divorced (say, for example that you’re living separately), you can file for child support, custody, and visitation at the juvenile court level. (We call this an ‘initial determination’ because it’s your first time in court.) If you’ve already had custody, visitation, and child support determined, either as part of your divorce or as a separate action in the juvenile court, you can petition the court for a modification, as long as you can show that there has been a material change in circumstances.
How long does a custody case take? (Of course, it depends.) If your custody case is part of an underlying divorce action, refer back to the appropriate section—whether yours is a fault or no fault divorce, it will follow a similar pattern, even if custody is at issue.
For an initial determination or modification case, it depends on the juvenile court you’re in. In my area (Virginia Beach, Virginia), there’s typically a pretty big backlog in the juvenile court. So, from the date that you file, you’re probably looking at 6-8 months before you’ll get an actual hearing date. (You’ll have a first appearance scheduled much sooner, but, unless your child’s father is a no show, that hearing will just be to set a final hearing date. In most cases, that hearing is months away.) When you (or your family law attorney) file your petitions for custody, support, and visitation, ask the clerk how long it usually takes, and that will give you the best idea of your possible timeline.
If your case presents unique custody issues (like physical or sexual abuse, for example), it’s impossible to estimate exactly how long it will take.
Keep in mind that your case could always be different. It always depends on a lot of factors, so it could reasonably take more or less time than I’ve estimated here. Ask your family law attorney about your specific case, and hope for the best.