Where the spouses can reach an agreement on their own as to the terms of their divorce, these terms will be set forth in a written separation agreement (see our separate blog post on this topic).
The separation agreement will describe the majority of what will happen in terms of property division, support, and custody/support of minor children. Then, once the required period of separation has passed, the only thing that remains is to ask the court to divorce you.
Under those circumstances, you would not have to appear in court - this can be done through the mail using affidavits, and the agreed-upon terms of the settlement agreement will be incorporated into the court’s decree.
This is what is known as an “uncontested” divorce -- there is nothing for the Judge to decide and all you are asking the court to do is sign a divorce decree saying you are no longer married.
What if We Can’t Agree? -- Steps Involved in a Contested Divorce in Virginia
In the event, however, that the spouses cannot reach agreement on some or all of the issues involved, then one of the spouses may choose to file a contested divorce case in court.
In such a case, a judge will make decisions on any contested issues after a trial.
Filing a Complaint
As an initial matter, Virginia law requires that at least one of the spouses has lived in the state for at least six continuous months, in order to file for divorce in a Virginia court.
If this is the case, then the first step in filing for a contested divorce in Virginia is to file a document called a Complaint. This document states the grounds for your divorce. In the case of a fault-based divorce, this must include a specific list of conduct by the other spouse supporting the claim; in the case of a no-fault divorce, the Complaint must include that the couple has lived separate and apart for the required period of time. This is normally 12 months -- with or without kids -- when the parties have not entered into a signed, written separation agreement. (If they did have a signed agreement, and therefore an “uncontested” case AND they had no children or all of their children were over 18, the separation period is only 6 months -- another reason to try to work out an agreement!)
The Complaint will also include the details of any relief you are asking the court to grant, which means the outcome or result you seek from your divorce. Generally, this refers to your specific desires relating to spousal support, child custody and support, and the division of your marital property.
The Complaint must then be properly and legally served on the other spouse, which usually means it will be hand-delivered to your spouse by a process server or deputy sheriff.
Filing an Answer
After being served with the Complaint, the other spouse has 21 days to file a response, called an Answer, in which they admit or deny the conduct or other facts alleged in the Complaint.
Along with the Answer, the other spouse may also assert his or her own Counterclaims against the original filing spouse - for example, detailing their own separate grounds for a fault-based divorce, or their own request for custody of any minor children or spousal/child support.
Each party may file requests with the court to determine preliminary matters, such as to order the other spouse to provide them with evidence needed to prove their case (called “Discovery”), or to issue a temporary order concerning issues that require immediate attention. These may include how to handle spousal support, child support and/or custody, payment of jointly incurred debts, use of the marital residence, etc., while the divorce proceeding is pending.
Interests of a Minor Child
Either party to a divorce can also file a petition for custody in the Juvenile and Domestic Relations Court in their county, which can be done without a lawyer, by filling out the appropriate forms. (See our later blog post regarding spousal and child support for further discussion of this option.)
This path may be necessary in a case where you are not yet ready to file your Complaint, for example, if you have no “fault” grounds to assert against your spouse and have not lived separate and apart for the required time to file a no-fault divorce, and yet you have pressing custody and/or child support issues that need to be resolved by a judge.
The petition will usually be heard by a judge within several weeks (or months, depending on the court), at which time the Judge may enter a temporary custody and visitation order, and temporary support order pending a final hearing.
In such cases, it is not unusual for the Judge to also appoint a guardian ad litem, a lawyer who represents the interests of the children.
The guardian ad litem typically will interview your child(ren), if they are of an appropriate age, as well as the spouses and relevant other individuals, such as daycare providers or therapists. The guardian ad litem may then make a recommendation to the judge as to the outcome of your request. A guardian ad litem may also be appointed once your divorce case has been filed, to serve this same purpose.
(See our later blog post discussing custody issues for a fuller description of the guardian ad litem’s role.)
After the Complaint and Answer are filed comes the process of Discovery, which is the method by which the parties gather facts and evidence relevant to proving their claims in a trial.
Methods of discovery can include:
1) Written questions, which must be answered in writing, under oath;
2) Sharing of documents, which can include photographs, videos, audio recordings, text messages, emails, account statements, and any other documents that may be relevant to the contested issues; and
3) Interviews of a witness or party called “depositions”, which are conducted under oath and in front of a court reporter.
Your attorney may also issue subpoenas, which require an individual or business to produce documents.
Each party may also use the discovery process to identify and interview (depose) expert witnesses, as well as issue summons(es) to those witnesses to appear at trial. Experts are individuals who can testify with a high degree of specialized knowledge about emotional, medical and financial matters (such as the mental health of the parents, valuation of property, or the earning potential of a spouse), as may be relevant.
Depending on the Court, a pre-trial conference may be held to assess the status of the case and set a litigation schedule.
Your final trial date will typically be set several months after the pretrial conference, depending on the court and the amount of time necessary to hear the case. This gives each party time to prepare their trial strategy based on the evidence they have gathered.
The trial will typically last anywhere from a few hours to all day (and in some rare cases, more than one day), during which evidence and witnesses will be presented to the court, opening and closing statements will be made by each side, and the judge will review and consider the evidence presented.
The judge may make his or her rulings “from the bench” at the end of the trial, or he or she may issue a written decision in the form of a letter to the attorneys after the hearing.
The Divorce Decree
After the judge issues his or her final decisions, the attorneys will finalize these in a divorce decree, which will be signed by the judge and the parties, and filed with the court clerk.
It is a good idea to keep a copy of the final divorce decree, as you may need it to enforce certain provisions such as child or spousal support, or property division. You may also need it in order to legally change your name, apply for a mortgage, or in other similar situations.
Schedule a Consultation with Evolution Divorce
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