How to File for Divorce in Virginia?

May 9, 2021 | Divorce

How to File for Divorce in Virginia?

The end of a marriage can be a stressful experience for everyone involved, and uncertainty often adds to the stress. Many people thinking about divorce have questions about how to file, or what kind of spousal support or child support they may get. If you are consider a divorce, the best thing you can do is speak with a Virginia divorce lawyer, you can answer all your questions and explain your options.

The divorce process in Virginia includes choices for both no-fault and fault divorces. You or your spouse will need to be a resident of the state for at least six months before filing here. (Being stationed in Virginia for military service for six months prior to the divorce counts.)

Grounds for Divorce

First you’ll need to decide if you want a fault or no-fault divorce. No-fault divorces are usually less complicated, as you don’t have to spend a lot of time proving or disproving fault. To file for a no-fault divorce, you will need to be separated (not living together) for six months if you don’t have minor children, or one year if you do.

There are four grounds for a fault divorce:

Adultery or other sexual acts outside of the marriage
Felony conviction with a sentence of at least a year and some period of imprisonment
Willful desertion or abandonment
Reasonable fear of bodily harm

What If I Think My Spouse Is At Fault For Reasons Other Than Those Listed Above?

These are the only grounds Virginia recognizes for a fault divorce. You can still get a no-fault divorce even if you think your spouse is to blame, but be sure to discuss your reasons for the divorce with your attorney. They may be able to use some of them in negotiating for alimony or child support, even if these aren’t grounds for a fault divorce.

Virginia Divorce Laws: Adultery

Adultery is a common reason stated for fault divorces. There is no waiting period to file for divorce in Virginia for this reason.

In some cases, adultery may be difficult to prove, as Virginia law requires “clear and convincing” evidence. (This is a higher standard than for other divorce grounds.) Today this is somewhat easier thanks to technology. If you suspect your spouse is cheating but don’t know for sure, it’s a good idea to consult a Virginia divorce attorney. They may recommend you take steps to gain proof, such as hiring a private investigator, looking through electronic records, etc.

Virginia law also requires that the cheating results in a physical relationship. Emotional or mental affairs can be devastating and can absolutely end a marriage, but they do not fulfill the requirements for a divorce on the grounds of adultery.

You will need to provide testimony from an outside source—someone who witnessed the cheating, emails or texts, etc. Keep in mind that digital messages need to be specific. A text saying, “I had a good time last night,” doesn’t prove adultery. A text that talks explicitly about what your spouse and their new squeeze had a good time doing last night may provide proof. Photos taken by a private investigator are also often used as corroborating evidence.

Defenses to Adultery Charges in a Divorce Case

Sometimes the person accused of adultery will object to this as grounds for divorce, even if they did technically cheat on their spouse and it can be proven. There are four legal defenses to adultery charges:

Condonation. If your spouse learned of the cheating, but resumed living with you and having sexual relations afterward, this can be used as a defense to adultery charges.

Connivance or procurement. If your spouse actively encouraged the cheating, this is another possible defense.

Recrimination. If your spouse claims you committed adultery, but you believe you have evidence they also committed one of the fault grounds for divorce, you may use this as a defense. For example, if your spouse also cheated, that would be a possible defense. Or, if your spouse had abandoned you and you hadn’t seen them in years, that could also be a strategy.

Time-barred. In Virginia, the statute of limitations on using adultery as a grounds for a fault divorce is five years. If the cheating happened more than five years ago, you will need to find other grounds for your divorce.

Another thing to remember is that adultery is technically a misdemeanor in the state of Virginia. So if your spouse is on the stand and your lawyer directly asks if they cheated on you, they may be able to plead the Fifth. However, a Virginia law passed in 2020 drastically limited the situations in which the Fifth Amendment can be used in a divorce case involving allegations of adultery. If you’re not sure how this will work in your particular case, your lawyer should be able to advise you on whether you need other evidence of adultery.

Does Adultery Affect How Assets Are Divided?

It can, although in most cases, it only has a significant effect on how much spousal support one partner may receive. Generally it will not affect child custody or child support, as the court decides these matters in the best interest of the children, not as a way to punish a parent.

Can you get a Divorce Online in Virginia?

In some circumstances, yes. If you meet the qualifications for a no-fault divorce listed above, you may be able to go online and get a quick divorce in Virginia. You will need proof of residency in Virginia, and if your spouse now lives in another state, you’ll need to follow that state’s laws about serving them with divorce papers.

However, just because you can file for divorce online doesn’t mean you don’t still need an attorney. They will help you prepare a bill of complaint seeking a divorce, and ensure it’s properly filed. Next they’ll have divorce papers served to your spouse following state requirements.

If you and your spouse have already agreed on an uncontested divorce, the next part should be fairly easy. Your lawyer will draw up a waiver of notice, essentially saying your spouse does not object to an uncontested divorce, and the spouse will sign it. This generally makes the process go a lot faster.

Documenting the property settlement comes next. This can be fairly simple if there are few marital assets and no minor children involved. For this part, you’ll need to settle the issues of property distribution, debt, child custody and support, visitation, spousal support, and attorney’s or legal fees.

Finally, you will probably have a final divorce hearing. This isn’t legally required in Virginia, and some courts will allow you to submit depositions or affidavits, but other judges require an in-person hearing. You’ll need to bring a witness who knows you well to confirm that you’re eligible for a no-fault divorce. They will be asked questions about how long they’ve known you, where you live, how long you and your spouse have been separated, whether at least one of you intended the separation to be permanent, etc. Once the judge is satisfied that you meet the requirements, they will go over the papers you filed and ensure everything is in order. If they don’t have any questions or concerns, there’s a good chance they will issue your divorce decree.

How Much Does Divorce cost in Virginia?

This is a frequent question. Many people have concerns about the cost of their divorce, and it can vary depending on what kind of divorce you have. Fault divorces usually take longer and require more time in court, and that means more attorney’s and court fees. In Virginia, the average divorce cost is about $14,500 for couples without kids, or $21,800 for couples with kids. (Agreeing on child custody, visitation, and support often takes more time.)

Other factors can also affect the cost of your divorce. The more assets you have, the more time you’ll probably spend dividing them. Disagreeing about alimony also drives up costs.

Some people are able to reduce costs by using a divorce mediator in Virginia. This person is a neutral third party who sits down with both spouses and works to determine what they both want out of the divorce. Then the mediator tries to suggest solutions that both parties can agree to. If this process is successful, it can sometimes save both spouses a lot of time and money arguing things out in court.

Remember that just because you use a mediator doesn’t mean you no longer need an attorney. You will still want your lawyer to look over any agreement that you come to in order to make sure everything is covered and nothing important is missed.

What if mediation doesn’t work? Sometimes the spouse’s differences are just too great, and even a skilled mediator can’t settle them. In this case, you can go to court knowing you made every effort to avoid the expense of a court case.

If you have questions about divorce, please contact a Virginia divorce attorney for a free consultation.