It is possible to get divorced without ever setting foot in a courtroom, but certain requirements must be met:
- At least one spouse must be residing and domiciled in Virginia for more than six months immediately prior to filing for divorce;
- If the parties have a minor child, they must be separated for one year before filing for divorce;
- If the parties have i) no minor children and ii) have a signed separation agreement resolving all issues, they must be separated for six months prior to filing for divorce; and
- If there are any issues of property division, spousal support, child support, or custody and visitation, the parties must have a written and signed property settlement agreement.
A property settlement agreement, also referred to as a “marital settlement agreement,” is a contract that divides the parties’ assets and debts and resolves any issues of spousal support. If the parties have a minor child, then the property settlement agreement also contains custody, visitation and child support terms. The property settlement agreement must be in writing and signed by both parties.
If the parties have a signed property settlement agreement, they can file for divorce after being separated for one year (or six months if there are no minor children). The process begins when one spouse, the “plaintiff,” files a complaint for divorce with the court. The next step is for the plaintiff to have the other spouse, the “defendant,” served so that the divorce can be finalized.
Service can be accomplished different ways:
- The plaintiff can request that the clerk of court prepare a summons and have either a private process server or a law enforcement officer serve the defendant with the summons and a copy of the complaint for divorce;
- The plaintiff can present the defendant with a form called an “acceptance of service,” along with the summons and the complaint for divorce. The defendant then signs the acceptance of service in the presence of a notary, and either the plaintiff or the defendant files it with the court;
- The plaintiff can present the defendant with a “waiver of service,” which the defendant signs in the presence of a notary and then files with the court; or
- The plaintiff can give the defendant a copy of the complaint for divorce and the defendant can file an answer.
The next step is for the plaintiff (or defendant if proceeding on a counterclaim filed by the defendant) and his or her witness to present testimony to the court in support of the grounds for divorce. They can present their testimony either orally at a hearing in court, or by filing affidavits with the court. Virginia Code § 20-106 sets out the required testimony, which includes:
- The facts set forth in the complaint for divorce (including the date of marriage, date of separation and last place of cohabitation before separation);
- Whether either party is incarcerated*;
- The military status of either party*;
- That neither party suffers from a condition that would render him or her legally incompetent*;
- The names and dates of birth of any minor children born or adopted of the marriage;
- Whether either party is pregnant with a child of the marriage;
- That at least one of the parties has been residing and domiciled in Virginia for more than six months prior to the complaint for divorce being filed;
- Verification that the parties have been living separate and apart continuously since the date of separation for the required period (either six months or one year);
- For the witness, verification that he or she has personal knowledge that:
- at least one of the parties intended the separation to be permanent from the date of separation forward and;
- the parties have not cohabited at any point since the date of separation.
*If a party is on active duty in the US military, incarcerated or legally incompetent, additional procedures may be required to obtain a divorce.
The final two documents to prepare are the vs-4 and the final order of divorce. A vs-4 is a form published by the Commonwealth of Virginia that requires certain information about both parties, including: date of birth, place of birth, number of times married, number of years of education, number of minor children of the marriage, etc. The court forwards the vs-4 to the Virginia Department of Vital Statistics. The other document is the final order of divorce.
The following documents must be filed with the court to complete the divorce process in addition to the documents pertaining to service described above:
- an original signed property settlement agreement
- affidavits of plaintiff (or defendant) and witness
- completed vs-4
- final order of divorce
Typically, within a couple of weeks of all the documents being filed with the court, a judge’s clerk will review all of the filings to ensure that everything has been done correctly and all of the required information and documents have been submitted to the court. After the clerk has verified these things, a judge will sign the final order of divorce and the parties will be divorced as of that same day.
If you have questions about how to obtain a divorce or would like help with the divorce process, our attorneys can assist you.
