Though there are definitely similarities between divorces, there are lots of differences, too. In fact, if you’re wondering about what is involved in divorce procedure, you’re not alone. And, the truth is, it’s not always a very simple answer!
Divorce procedure is different depending on the type of divorce you’re pursuing. For our purposes, at least as far as it relates to divorce procedures, you can have two types of divorce: contested or uncontested. If it’s contested, meaning that you and your husband can’t reach an agreement about how your assets and liabilities are going to be divided, it doesn’t matter whether it’s fault or no fault because you’re going to be following the procedures associated with going to court. (Whether it’s fault or no fault doesn’t determine whether it’s litigated; the fact that it’s contested does, so that’s what’s relevant here.)
If, on the other hand, your divorce is uncontested, it’s automatically also no fault, which means that you and your husband were able to reach an agreement about how your assets and liabilities will be divided. In that type of divorce, because it isn’t litigated, you won’t be in court at all (or, if you are, it will only be briefly, for an uncontested divorce hearing), so the procedures are a little bit different.
It’s also possible, though, to combine the two approaches in any number of ways. A divorce can start out uncontested and become contested; likewise, a divorce can also start out contested and then become uncontested. Very few divorces move all the way through the litigated divorce process because it’s so time consuming and expensive. Still, in a lot of cases, and for a lot of reasons (which is definitely a little bit beyond the scope of this article, but for more information on why you might want to start out with a fault based divorce, click here, and then click here) you might find yourself in court, or switching between the two main kinds of divorce. As you can imagine, that can create all sorts of different timelines for divorce, and can definitely affect how different procedures are applied.
Still, it’s possible to give you a general idea of what to expect in a divorce case depending on the type of divorce you pursue. Keep in mind that, to some extent, the procedures of contested and uncontested divorces can overlap to the extent that a single person can switch back and forth between different types of divorce at different points in the process.
In an uncontested, no fault divorce, there’s very little actual procedure involved. To get a divorce in Virginia, you have to have grounds so, when you’re talking about a no fault divorce, you’re using your period of separation as your grounds. (You have to be separated a full year to get a divorce, unless you don’t have minor children AND you have a signed agreement in place.) Because of that, you can’t even file for divorce at all until that one year (or six months, if you meet both criteria) has lapsed.
Since you haven’t filed for divorce (because you don’t actually have grounds until that one year is up), the court doesn’t know you’re pursuing a divorce. There’s nothing pending before the court, so you can’t use the “teeth” of the court to move things along, like you could if you already had some kind of action filed.
Most people, in the time between when they first separate (for more information on what separation means and when you’re actually separated, click here.) and when they can file for divorce, negotiate their separation agreement. The separation agreement is the end goal in an uncontested, no fault divorce; it’s a legal contract that divides the assets and liabilities between the parties. It handles everything—custody, child support, visitation (if you have kids), spousal support, equitable distribution (that’s the fancy word we used to describe property division of everything from retirement, bank, and investment accounts to cars and boats to furniture and kitchen appliances), and more.
To get a separation agreement in place, lots of things can happen. If you’ve hired an attorney to represent you, the result will probably be negotiated back and forth. That can happen in letters or phone calls between the attorneys, or from sit down negotiations. Sometimes, we have what is called a four way settlement conference, which includes both spouses and their respective attorneys. Other time, we’ll have a judicial settlement conference, where a retired judge mediates between the respective sides. In each circumstance, the end goal is to reach a mutually agreeable result—so that the parties can sign their agreement and move on to pursue their divorce.
If you’ve hired a collaboratively trained attorney to handle your case, on the other hand, you’ll collaborate to reach a result. (Duh, right? Well, there’s more.) In a collaborative case, both you and your husband hire attorneys—but you also hire divorce coaches (one for each of you), and then share a financial specialist and, if you have children, a child specialist. The idea here is that, together with your team of professionals, you’ll work together to craft a result that is in everyone’s best interests. It’s a much less adversarial process, as opposed to traditional divorce negotiations with an attorney, and, beforehand, you make an agreement not to go to court. You meet together as a group, or with different parts of the whole group, to reach an agreement together.
You can also use a mediator to negotiate a separation agreement. (For more information on the advantages and disadvantages of working with a mediator, click here.) You can also draft your own agreement, if you’re so inclined. In fact, these days, many people do. If you, like those women, want to take your divorce into your own hands and draft your own agreement, you can get more information about do it yourself divorce by clicking here.
There are no official divorce related procedures when it comes to negotiating a separation agreement. In fact, almost anything goes. It’s all about reaching that agreement and pretty much whatever it takes (so long as you aren’t holding a gun to anyone’s head and forcing them to sign) is legit.
What happens after you get an agreement in place? That’s where actual procedures come into play. Your first step is to file for divorce (once your one year of separation has lapsed, of course). This gets you into court. After that, once your complaint is accepted, your husband will have to be served (or vice versa, if he files first; don’t worry, though, it doesn’t make a difference either way in terms of who files first) or sign a waiver giving up his right to service of process. It’s not really a big deal at this stage; there’s nothing you can do to change the terms of the separation agreement once it’s signed (unless you negotiate and sign an addendum to the agreement, but he can’t pull a fast one on you at the last minute—you’d have to sign it). After your divorce is properly filed, you’ll request an uncontested divorce hearing or, alternatively, complete the forms necessary to receive a divorce by affidavit, if that’s allowed in your jurisdiction.
If you’ve hired an attorney, this is something he or she will take care of for you. It mostly involves a bunch of different paperwork—a final divorce decree, witness affidavits (to get divorced in Virginia, you have to have a corroborating witness to testify that you were separated for the statutory period), a VS4, a confidential addendum, a child affidavit, and so on. If you’re working on your divorce on your own, it’s not really particularly hard, but it does require properly filling out a bunch of obnoxious forms. Keep in mind that, in most courts, these documents are extensively reviewed for errors by clerks, so, if you’ve made a mistake, they may very well find it—and reject your documents. But don’t worry; you can correct your mistakes and file it again.
Then, to end things, you either have the final divorce hearing or your divorce is granted by affidavit. An uncontested divorce hearing is a minor thing; usually, it lasts no more than ten minutes, and just consists of you and your witness being questioned about your grounds for divorce. The questions are routine, and include things like, “At any time, did you or your husband serve in the Armed Forces of the United States?” and, “At the time of this filing, were either you or your husband mentally incompetent to understand these proceedings?” It’s fairly straightforward. You’ll be fine.
When it comes to a contested divorce, on the other hand, there are a lot of procedures involved. With a fault based divorce, you can file for divorce right away—no need to wait until you’ve been separated long enough to file. A no fault divorce, on the other hand, even if it’s contested, will take an entire year of separation before you can file. Otherwise, though, after the point of filing, it would proceed in much the same way. (Because, remember, it’s contested because you can’t reach an agreement so, even though you’ve been separated long enough to get a divorce, you can’t yet without either a separation agreement or a final disposition by a judge about how everything will be divided.)
Once you file a fault based divorce, which involves filing a complaint (if you file first), responding with an answer (if your husband filed first), and, in some cases, filing cross claims. A complaint is the document that formally opens the case, sets forth the grounds for divorce (and the reasons for believing that you have these fault based grounds to file on), and requests specific relief. An answer, on the other hand, is a responsive document. It sets forth its own grounds and supporting evidence, requests relief, and admits or denies the allegations from the complaint.
In many cases, a pendente lite hearing is the first formal step. It’s a temporary support hearing, designed to help alleviate the initial financial concerns—award temporary child and spousal support, custody, and visitation, enter an order preventing wasting of marital assets, harassment or interference, and, in some cases, giving one party or the other exclusive possession of the home.
After the pendente lite hearing, formal discovery is often conducted. Discovery is the process lawyers use to determine what assets and liabilities exist to be divided. (Because, most of the time, people aren’t particularly forthcoming and don’t just share their bank account, retirement account, or investment account information.)
Before trial, a number of different steps are often involved to help encourage the parties to reach a settlement. Depending on your jurisdiction, you could have to do all sorts of things—file proffers, attend a judicial settlement conference, file pretrial briefs, and more. The idea here is to promote settlement; courts have super backed up dockets, so it’s often hard to get a court date. Even more important, judges don’t really have time to listen to hours and hours of evidence and testimony on a divorce case to divide the assets. Since they know that the parties will almost certainly be happier if they negotiate their own outcomes anyway, there are lots of procedural road blocks in place to keep people from getting all the way to trial.
You might think that things are the same throughout the Commonwealth and, for the most part, they are. Still, though, a lot of times courts have their own local rules that they follow. Things can be pretty different, for example, between Virginia Beach and Newport News, even though, geographically, we’re really close.
If you don’t settle, you can set a trial date. At trial, each side will have the opportunity to present it’s evidence, question its witnesses and experts, and make its arguments. Usually, the party who filed first will present first, and the responding party will go second. In the end, the judge makes a decision, grants the divorce, and signs the final decree.
If your divorce starts out one way and then switches over, it could look pretty different—but your divorce will still follow, for the most part, one or both of these general outlines. Most of the time, divorces settle. Why? Because the alternative (letting a judge decide) is expensive, time consuming, and doesn’t often yield the best results.
For more information about the divorce process and what procedures are involved, give our office a call at (757) 425-5200. We can help you set up an appointment for a one on one consultation with one of our attorneys, or help you register for one of our upcoming Second Saturday seminars.