The three requirements for getting an uncontested divorce in Virginia are 1- State residency in Virginia; 2- Agreement between the spouses as to the reason for divorce; and 3- Agreement between the spouses on the underlying issues in your case. Let’s look at each of these.
Residency Requirement for Divorce in Virginia
This is controlled by law: Va Code § 20-97 (2022) states that at least one (1) spouse (but not both) must have been a resident for at least six (6) months before beginning or filing the divorce case.
The Reason for Divorce
Both spouses must agree the reason or grounds for your divorce is “No-Fault.” This means that the divorce is based on “irreconcilable differences” or “irretrievable breakdown of marriage.” Put another way: the couple cannot get along and there’s no hope to repair the marriage, or that they will come together again (that is, “reconcile”). At least there is enough communication to agree to separate without going to court, which is something to genuinely be thankful for, but other than that, each spouse wants to go her or his own way.
Fault based divorces, on grounds such as Abandonment, Adultery, Cruelty, a Felony Conviction, or Substance Abuse, are not allowed in uncontested divorces in Virginia and will generally have an impact on property awards and alimony. In these cases, one spouse alleges the other is “at-fault” for the divorce and that they ought to be more financially responsible as a consequence. Keep in mind that the list above is not exhaustive. (See Va. Code § 20-91 (2022)
See my other posts (here and here) for a discussion of Fault-based divorce and its effects on property division and alimony.
Virginia Has a Separation Requirement for Divorce
Virginia is very clear that in order to get an uncontested divorce, spouses with minor children must have lived separate and apart, without sexual relations (or really touching of any kind) for at least one (1) year.
For spouses without minor children- that is either the couple has no kids or they are all over eighteen (18) years of age- must only be separated for six (6) months prior to filing for divorce. (See Va. Code § 20-91(9)(a) (2022)
Agreement on the Issues of Your Case
Before filing for an uncontested divorce, both spouses will need to come to an agreement on several different things. The biggest issue is usually the marital home, and other real estate. Sometimes it is not possible for one spouse to stay in the marital home because the financial burden is too great for only one earner to bear- often this means the home will be eventually be sold but, sometimes the spouses may come to an agreement to ensure that one spouse can stay in the home. I see this most commonly with children: not wanting to disturb kids who are in school and have friends and a life of their own is usually very important to parents.
Other big issues I frequently see are:
Alimony- in Virginia we call this Spousal Support: who will pay whom- how much, AND for how long?
Child Support- there must usually be a provision for dependent children of the marriage.
Outstanding Debts- this can be a significant one: who pays the joint credit card; are both parties liable for one spouses student loans…?
Retirement accounts- if these were contributed to during the marriage, the non-contributing souse likely is entitled to some the account. In this case, I ask each spouse to list the retirement accounts they have and, assuming the spouses plan to keep them separate (common in an uncontested situation), we place a provision in the PSA (property separation agreement) that reflects this.
Child Custody and Child Visitation- visitation can be worked out rather easily but, who pays for each child’s health insurance- who makes medical decisions for the child? The parent with custody, perhaps both?
Each of these things should be very clearly spelled out in the PSA. That’s why working with an attorney in this type of case is incredibly beneficial. Assuming you and your spouse meet the above requirements for residency, separation and agreement, you are eligible for an uncontested divorce in Virginia but, without a thorough PSA, you are likely creating a host of issues for yourselves down the road. Think, you may be divorced, but don’t have a clear idea as to each parties rights and responsibilities moving forward. That impacts your daily life, the lives of your kids and the lives of your families, potentially even altering work situations.
Filing Your Documents Correctly
Assuming you and your spouse can get to this point- and in an amicable situation, this is not uncommon, you face a number of documents you must file. The PSA alone, which discussed above, has very specific language that is required to make it binding- if you’re not using it, the court will likely not accept it. The same goes for the other documents you must file: The Complaint, Waiver of Future Service of Process (by the Defendant), the Privacy Addendum, Affidavit (of the Plaintiff) in Support of Divorce, the VS4 (Vital Statistics form) and the Final Order.
These documents MUST HAVE specific language in them for the court to accept them- trying to do this on your own will result in the many delays and trips to the courthouse: these documents in most cases must be filed in person- this means a trip to the courthouse, passing through security, and then a trip to the clerk’s office. If a person without experience were to try this, I guess they would have numerous times where they would have to go down to the courthouse- my best guess is 10-12!
Additionally, if the documents are inconsistent (eg, dates incorrect, etc), the clerk will accept them, but when they are reviewed in judge’s chambers, they will be bounced back- if you don’t have legal training, this means you will have to start all over again: that is, start by filing the complaint and printing new documents and notarizing them and returning yet again to the courthouse.
I read a lot of blogs where my colleagues say that “yes, you could get an uncontested divorce without an attorney” and while this is technically so, it would be, in my opinion, a tremendous amount of time and resources spent that could have gone for something else- think spending more time with your kids, going on a trip, or working on your home. The cost to hire an experienced attorney who can handle this process in a smooth efficient manner is actually less than it will cost you in time and money to handle it yourself.
Many experienced attorneys even make the mistakes I’ve briefly discussed above but, with experience, they can cure these faults without having to refile and restart the process. I have an office that abuts the courthouse and frequently file documents there, so trips in to the clerk’s office there are easy and streamlined- this is not the case for a non-attorney.
The more experienced and the better relationships your attorney has at the courthouse, the faster and smoother your uncontested divorce will go.
