An uncontested divorce is usually filed under no fault grounds but one may be filed under fault grounds if the other spouse is willing to co-operate. Both parties must be in agreement regarding division of marital assets and debts, support, child custody and visitation. There may be additional expenses if your spouse does not live in Virginia, if you don't know where they live or if they are incarcerated. There is an additional fee for preparation of a property settlement agreement.
Grounds for Divorce under Virginia Law:
No Fault Divorce Grounds:
Separation for more than one year or, if the marriage has no children and the parties sign a separation agreement, Separation for more than six months.
Separation means only that you and your spouse are not living or sleeping together. There is no requirement for a court-ordered separation to start the separation period to obtain a divorce.
Fault Grounds:
Adultery, Felony conviction and sentence of over one year, Cruelty or Desertion for over one year.
There is also a residency requirement that one of the parties have lived in Virginia for at least six months.
What is the process for an uncontested divorce?
Once you meet the legal requirements, I will meet with you to prepare a divorce complaint. The divorce complaint will then be filed with the court. A copy of the divorce complaint will be sent to your spouse along with a pre-written answer for them to sign. Once we have their answer, I will prepare and affidavit that you will to sign before a notary under oath, you will also need to provide a witness who can sign a sworn affidavit about how long you and your spouse have been separated and the grounds for you divorce. I will then prepare a final divorce order and will submit the documents to the court. Once the judge signs the divorce order, your divorce will be final. There will almost certainly be no need to go to court and the process can usually be done in well under a month.
If your spouse does not sign the answer, you may still obtain a divorce although there will be delays. Your spouse will need to be formally served by the Sheriff. If no answer is filed within 21 days, you may file for a default judgment. If your spouse files an answer contesting your complaint or seeking a divorce under different grounds, then the divorce becomes a contested divorce. For this reason, it is important to settle any differences before you file your divorce complaint.
Do we need a Property Settlement Agreement if we have no property?
Only if you have been separated for more than six months but less than a year. The law allows couples to divorce after six months if they have no children between them and they have an agreement. This was intended to give couples an incentive to resolve their issues and reduce the burden on the courts. The agreement need not be anything more than a statement that the parties have divided their property to their mutual satisfaction to meet the requirement for divorce. However, if you do have substantial martial assets or debts, a formal agreement may prevent countless problems. If you do have children, you will definitely want to have an agreement.
Can I get a divorce if I have no idea where my spouse is?
Yes, but it takes time and is more expensive. Your spouse will need to be served by order of publication which means you will need to pay to have a legal notice of your divorce complaint posted on the newspaper. If you have any address where you think they may be, you should serve that address first.
Can I get a no-fault divorce if my spouse doesn't agree?
It is best to reach an agreement before beginning the process. If you can not reach an agreement between yourselves, mediation may be extremely helpful. If you meet the legal requirements for a divorce, you may still get a divorce but a court hearing may be required which is time consuming and will cost more.
Can an uncontested divorce be filed under the grounds of adultery?
Yes, filing for divorce under the grounds of adultery has the advantage of allowing for an immediate filing instead of waiting for the separation period to be reached. The problem is that courts require clear and convincing evidence of the adultery. In an uncontested divorce, you will need the agreement of both spouses and the person with whom your spouse committed the adultery will need to sign an affidavit declaring that they did so.
How can we live separately if I can't get my own place?
You may be able to claim "constructive separation" for divorce purposes if you and your spouse have been absolutely nothing more than roommates. This means you can not have been living as husband and wife in any way and may be difficult to prove. You will need to have separate bedrooms and should not live in a manner that would suggest that you are living as husband and wife.
Information on this page and website is for informational purposes only and should not be considered legal advice. and making sure your voice is heard in court.