Divorce is not easy, but it doesn?t have to involve bitter disputes and protracted litigation either. Virginia?s divorce statute provides for an uncontested divorce proceeding, sometimes called a no-fault or divorce by agreement. If you qualify according to the legal requirements and can compromise on essential divorce issues, you may be able to take advantage of the process. However, despite the seemingly straightforward rules, you shouldn?t disregard the need for an experienced attorney. You still have rights, and an uncontested divorce lawyer can protect them.
Our attorneys at Lugar Law PC know that Virginia divorce laws can seem intimidating, even when you and your spouse are on the same page with respect to key divorce issues. We?re here to provide legal advice and assistance with the required forms, so you can feel confident in the uncontested divorce process. Our lawyers can also assist with marital agreements for couples looking to plan for the future. Please contact our Roanoke, VA office to schedule a consultation with an uncontested divorce attorney today. Call us at (540) 384-0348 or use our online contact form.
How Uncontested Divorce Works in Virginia
Just as the term implies, an uncontested divorce is a proceeding through which the parties agree on the important issues involved with dissolving the marriage. There?s no need to litigate these matters if you all can agree, so you and your spouse can complete the process quickly as compared to attending multiple hearings in court.
Key Issues in an Uncontested Divorce: In general, you and your spouse must be able to agree on the important aspects of the divorce process, including:
- How to handle your primary residence and other real estate;
- Dividing bank accounts, investment assets, vehicles, personal belongings, and related property that you acquired during your marriage;
- Who will take responsibility for debts incurred while you were married;
- Whether spousal support is appropriate the specific terms of alimony; and,
- All other issues regarding a dissolution of marriage.
In addition, you may qualify to file for an uncontested divorce with a child. Again, you must be able to agree on the major issues involving raising minor children, including custody, visitation, and child support. Note that the court is required to review your agreement to ensure it complies with Virginia?s law on the child?s best interests. The factors can be complicated, so you should consult with an uncontested divorce lawyer regarding the specifics.
Eligibility Rules: Not all couples will qualify for an uncontested divorce, even if they can reach an accord on important divorce considerations. Under Virginia?s uncontested divorce statute:
- Both parties must have resided in the state for six months or longer; and,
- You must have been living separately, with the intent to remain permanently separated, for six months to one year.
The statutory separation period varies based upon whether you have minor children. You may qualify for the six-month requirement if there are no children and you?ve already entered into a marriage separation agreement. Otherwise, you must comply with the one-year separation period for an uncontested divorce.
As an additional eligibility factor, the obvious caveat is that you must agree on all issues when filing for an uncontested divorce. A dispute over any of the above subjects means that the proceedings aren?t truly uncontested, and you don?t qualify to go through the process. You can enter an agreement on certain issues, but a judge will have to make a determination on disputed matters.
However, even when you think an agreement isn?t possible, you may have success in reaching a postnuptial or separation agreement when you retain an experienced lawyer. Through their negotiation skills, attorneys can often bring parties together on important issues, so an uncontested divorce remains an option.
Benefits of Uncontested Divorce
There are multiple advantages to working out a separation agreement in Virginia. The details may vary depending on your specific circumstances, but some examples include:
- The process moves along quickly, as you won?t be attending court hearings to have the judge make a determination on disputes.
- You have more control over the divorce proceedings. Parties aren?t bound by Virginia?s divorce laws, which is what the judge would apply with respect to property division and spousal support. You and your spouse can come to a custom-tailored arrangement that suits your lifestyles and personal needs.
- The cost of uncontested divorce is lower than traditional divorce proceedings. Though you?ll need a lawyer to assist with negotiations, drafting essential documents, and other legal tasks, your attorneys? fees will likely be far less.
For couples with children, the benefits of filing for an uncontested divorce are also significant. The child?s best interests are paramount, but you still have considerable leeway in making an agreement on custody, visitation, and support. Your entire family may gain advantages in a number of areas, such as:
- When their parents are generally on amicable terms, children enjoy stronger parental bonds;
- You have control over your family arrangement moving forward, instead of being subject to a judge?s determination on child-related issues;
- Your children don?t have to appear in court or for interviews with court officials regarding custody and visitation, which can be traumatic; and,
- Because uncontested divorce proceeds through court quickly, your children aren?t left in limbo for months as they might be with a traditional divorce.
Proceedings for Uncontested Divorce
The process for uncontested divorce starts many months before you actually initiate court proceedings since you must comply with Virginia divorce laws on the statutory separation period which applies to your situation. Once the six-month or one-year time period expires, you?re in a position to complete and file the required uncontested divorce forms. The exact documents may vary by county and depending upon your circumstances, but some of the important forms include:
Petition for Divorce: Whichever spouse will initiate the divorce will file a Petition as plaintiff or petitioner, naming the other as defendant or respondent. In your documents, you?ll assert basic facts regarding your marriage and state that the divorce proceedings will be uncontested. You?ll also request that the court order a final divorce decree based upon the agreement you?ve reached.
Summons: Even in an uncontested divorce, the defendant must be officially served with the Complaint. However, when you?re in agreement regarding the proceedings, this spouse can waive service of process.
Answer to the Complaint: The defendant spouse will have a chance to respond to the Complaint, which will typically be to state agreement with the facts and requests or does not answer and most uncontested divorces are finalized through default judgment.
Marriage Separation Agreement: This is the foundational document in an uncontested divorce, where each party states consent to the division of assets, child support, and alimony. If you have minor children, you can also include:
- Your proposed parenting plan, which includes the agreed-upon terms regarding child custody and visitation; and,
- The child support order, which states the essential provisions on what the non-custodial parent pays to the other.
When you file uncontested divorce documents, most often the case is transactional in nature and the court will not hold a hearing for the matter. If there are no outstanding issues and you?ve fully complied with all requirements, the court will issue a final divorce decree.
This overview of the required forms and summary of the uncontested divorce process may be useful, but it?s always important to remember that any legal proceeding has serious implications for your rights. Though a marriage separation agreement has its advantages, it?s a mistake to overlook your own financial welfare and parental rights. An uncontested divorce lawyer will put your needs first and ensure the agreement is truly in your best interests.
Postnuptial Agreements in Virginia
You may be familiar with prenuptial agreements, which are written contracts that spouses-to-be execute prior to their wedding. In a prenuptial agreement, the parties can set out the terms and conditions on dissolving their marriage if they eventually do move forward with divorce proceedings.
Virginia also has a statute on postnuptial agreements, which is essentially a prenup after marriage. Married spouses can enter into such agreements for purposes of resolving their respective rights regarding property and spousal support. In many situations, couples may opt for a postnup because they didn?t work out a prenuptial agreement before marriage, and they now want to execute one. It?s also possible to revoke or amend a prenup by preparing a postnuptial agreement.
The parties can include provisions regarding:
- Real estate and personal property they own individually or jointly;
- The right to manage, sell, or otherwise control real estate and personal property;
- The terms and amount of alimony, including the time limitations or other circumstances under which it will cease;
- Estate planning;
- Insurance policy death benefits; and,
- Any other matter that?s consistent with state laws and public policy.
Aside from the content of the postnuptial agreement also known as a separation agreement, the requirements for execution are that it must be in writing and signed by both parties. While a prenuptial agreement becomes effective on the wedding day, a postnuptial marital agreement is effective the date that both parties sign it.
Discuss Your Options with an Uncontested Divorce Lawyer in Roanoke, VA
For more information on an uncontested divorce, please call Lugar Law PC at (540) 384-0348 or use our online contact form to set up a consultation with one of our attorneys. We can schedule a consultation to review your circumstances and determine eligibility. Our lawyers are also happy to help with prenuptial agreements, including negotiations, drafting, and review of an agreement that?s been presented to you.