What happens in an ore tenus hearing for Virginia uncontested divorce?

These days, more often than not, an uncontested divorce is handled by affidavit. In certain circumstances, though, a special uncontested divorce hearing, which we call an ‘ore tenus’ hearing, will be held.

This happens, in some jurisdictions, especially when the parties lived separate and apart under the same roof during a portion of the period of separation. Not every jurisdiction will require a hearing, but some do – so it’s important to ask about your jurisdiction before you decide to live separately in the same home. It’s not that knowing that you may have to have a hearing might make you decide to live separately in different homes, and it’s more about just having all available information at your disposal when you make a decision.

Divorce by affidavit is a relatively new process; in the olden days (you know, like, when I first started practicing almost a decade ago now) we used to have ore tenus hearings all the time. These days, it happens less often – and it’s usually still not that big of a deal.
Of course, it’s important to remember that divorce is a legal process, and that certain legal standards have to be met. It’s not that a judge is ‘nice’ or ‘mean’; it’s that certain statutory requirements have to be met. That’s actually the main requirement of an ore tenus hearing. The judge is trying to ensure that the statute is satisfied and that the divorce can be granted.

In Virginia, for the next few weeks at least, both a party (plaintiff or defendant) and a corroborating witness are required to testify to satisfy the statutory requirements. After July 1, 2021, though, the corroborating witness requirement will be removed, which is really exciting news.

Apparently (though I didn’t realize this until recently), Virginia is/was (depending on whether you’re reading this before or after July 1, 2021) one of the last states to require a corroborating witness. Though that’s usually not a problem, it became a bigger deal lately, especially with the pandemic, as it became harder and harder for people to have others who did not live in the same home there to testify on their behalf.

As far as the ore tenus hearing is concerned, removing the corroborating witness requirement doesn’t change that much, except that you’ll go to the hearing on your own.

It may be nice to have someone there with you, besides your attorney. But, otherwise, it really won’t make that big of a practical difference to you. It’s one less document to prepare (a witness affidavit) in the case of a divorce by affidavit, and it’s one less witness to question in court (in an ore tenus hearing), but that just means that you’ll have to satisfy the statutory requirements on your own.

In most cases, you’ll satisfy the statutory requirements by answering questions the judge asks you in the courtroom. In some cases, the judge will let your attorney do the questioning, but it’s really up to the judge.

What types of questions will the judge ask in my ore tenus hearing?

A good question! Different courts sometimes change things up a little but, but most questions are variations on a theme. I took these from Virginia Beach’s required questions, but most courts questions will look somewhat similar to these.

1. State name and address.
2. I am married to (name of party/spouse).
3. My spouse and I were married on (date) in (location of marriage).
4. Do you affirm that both parties are over the age of 18?
5. Were you [and/or spouse] bona fide residents and domiciliaries of Virginia at the time of filing the divorce and more than six months immediately preceding filing?
6. Have either you or your spouse been incarcerated in a mental or penal institution at any time since the filing of this divorce?
7. Are you and your spouse mentally competent?
8. Have either you or your spouse been a member of the armed forces of the United States on active duty at any time since the filing of this divorce? If yes, a. Was the military member stationed in or residing in Virginia for at least six months immediately preceding the filing of this divorce? b. Has the military member filed an answer or a waiver of Servicemembers Civil Relief Act rights?
9. Have you and your spouse separated from one another? If yes, state date separated: ______.
10. When you and your spouse separated did one of you intend for the separation to be permanent? If No, when did one of you form that intent? (State date).
11. Since the date of the separation, have you and your spouse lived separate and apart, continuously, without cohabitation and without interruption?
12. Are there any children born or adopted of the marriage? If yes, state names and ages: ________.
13. Do you affirm that the wife is not known to be pregnant from the marriage?
14. Have you and your spouse entered into a written and signed property settlement agreement? If yes, do you want the court to affirm, ratify and incorporate the property settlement agreement into the final divorce decree?
15. Is there a request to have a former name restored? What is it?
16. Do you want the court to grant you a divorce based upon the grounds of having lived separate and apart without cohabitation and without interruption for a period in excess of one year or six months [list only the ground that applies]?

Will the judge ask questions NOT on this list, or otherwise give me a hard time?

Maybe? It depends on the judge. Some are notoriously difficult, and like to ask questions about your legal separation, and how you lived separate in the home. You should be prepared to answer questions about your sleeping arrangements, cooking and cleaning in the home, etc. Remember, too, you are under oath and therefore under penalty of perjury – so you want to answer these questions truthfully!

Living separate under the same roof is always going to open you up to a bit more scrutiny, so it’s best to be prepared and have answers ahead of time. If your hearing is before July 1, you’ll want to prepare your witness, too, and have him/her be able to support your testimony to the extent that he/she can. After July 1, it’ll be your word against yours, so that makes it a bit easier. Judges can still be nitpicky, but you won’t at least have to have two people making the exact same statements.

Talk to your attorney if you have specific questions, and to come up with answers ahead of time in the event that you’re concerned.
Similar questions will be asked of your witness, too – at least, up until July 1, 2021. Definitely check on Virginia Beach’s Uncontested Divorce Procedures Manual for more.  It’s not binding everywhere, as each court has some of its own local rules, but it’s a good guideline.

For more information or to schedule a hearing, give our office a call at 757-425-5200.

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