There are as many reasons to get married and stay married as there are to get divorced. Virginia’s marriage rate in 2021 stood at 5.9 marriages per 1,000 residents, while the divorce rate rested at 3.1 divorces per 1,000 members of its population.
Maybe you find yourself about to be part of the latter part of that statistic, whatever your reasons for pursuing a divorce may be, and you worry about the procedural and documentary obstacles you could be facing. We have prepared the following guide on Virginia’s divorce laws (and the paperwork and processes that accompany them) to help make the new phase of your life a little less bureaucratically daunting.
Divorce vs. Annulment vs. Legal Separation in Virginia
In Virginia, divorce and annulment are the two legal routes that couples can take to end their marriage. A divorce is an end to a valid marriage, and Virginia recognizes two forms: a divorce from bed and board (a mensa et thoro) and a divorce from the bonds of matrimony (a vincula matrimonii).
A divorce from the bonds of matrimony effectively ends the marriage and the legal ties that go along with it. In a divorce from bed and board, on the other hand, the couple remains legally married, but the proceeding distributes the couple’s assets and establishes agreements regarding child custody and spousal support.
A divorce from bed and board is akin to what other states consider a legal separation. Some couples pursue a divorce from the bonds of matrimony after securing a divorce from bed and board.
An annulment, meanwhile, ends an invalid marriage. Annulments are granted by the court if it is found that the marriage shouldn’t have happened in the first place. Legal grounds include duress, bigamy, incompetence, impotence, and fraud.
Separation as Non-Legal Agreement in Virginia
Virginia does not recognize “legal separation” as status. There is no legal paperwork to file or court procedures to follow. The courts simply recognize that if one or two of the spouses intend to separate, then they are.
However, a key requirement for filing a no-fault divorce is to have lived separately and/or apart for six months (for those with no minor children) or one year (for those with minor children). There are divorcing spouses who continue to live in one residence even while separated, only to live as though they are apart.
To meet the requirements for separation, even with cohabitation, divorcing couples must lead distinct lives. They cannot share a bedroom or a bathroom, do household tasks together, have sexual relations, or wear their wedding bands. They must stop sharing financial accounts or giving gifts to each other. They cannot share meals together.
New arrangements can be complicated, especially in the presence of children. But there are many reasons—often financial, sometimes for the best interests of minor children—for couples opting to cohabitate even with the intention of divorcing.
Is Virginia a No-Fault State When It Comes to Divorce?
Yes, couples in Virginia can pursue a no-fault divorce. The sole legal ground for no-fault divorces is separation. Otherwise, spouses do not need to prove that the other was at fault for the failure of the marriage, and no blame is required to be assigned for a divorce to push through in court. This option primarily accommodates less contentious splits and may allow for more amicable divorce proceedings.
How to File for Divorce in Virginia
Organizations like Virginia Legal Aid, state agencies like Virginia Judicial System Court Self-Help, and circuit courts (which handle divorces) like those in Fairfax County and Prince William County provide easy-to-follow resources for filing a divorce. For easy reference, you can download the Virginia Do-It-Yourself Divorce Worksheet and Virginia Divorce Instructions from VA Legal Aid.
1. Meet the Requirements for Divorce Filing
As a residency requirement for a divorce filing in Virginia, one of the spouses must have lived in the state for at least six months.
Make sure that your marriage meets the requirements for filing for divorce in Virginia. If you don’t have minor children, you must be separated for six months and have a Property Settlement Agreement signed by both parties. If you have minor children, you must be separated for one year.
2. Establish Legal Grounds for Divorce
You must determine a legally acceptable reason for getting a divorce. No-fault divorces can only cite separation as a legal ground, while fault-based divorces can cite any of the following legal grounds:
Adultery; sodomy outside of the marriage; sexual relations with an animal—and the couple ceased cohabitation upon the petitioner learning of it.
Willful desertion or abandonment for one year.
Cruelty upon the petitioning spouse, where the petitioner fears for their safety.
Felony conviction with imprisonment of at least one year, and the couple did not resume cohabitation after the sentence was served.
3. File a Complaint for Divorce
Fill out a Complaint for Divorce and file it with the appropriate circuit court. Divorce cases are usually handled in the county where the couple last resided together. (Here is a sample of a Complaint for Divorce from the Legal Services of North Virginia. It is applicable to a no-fault divorce where the divorcing couple has been separated for a year.)
4. Have Your Spouse Be Served with the Complaint
Your spouse must be personally and legally served with the Complaint for Divorce. You cannot do it yourself if you are the petitioner. Some petitioners ask for help from a Virginia sheriff or commission a process server to personally serve the Complaint. You can also ask someone who lives in the same residence as the spouse to hand them the Complaint while simultaneously mailing them a copy.
If the above traditional methods don’t work, you can ask the court to allow you to publish the Complaint in the newspaper every week for four consecutive weeks. The court will consider this as the Complaint of Divorce having been served and, in some cases, automatically translates to the respondent (the spouse you’re divorcing) as having waived their right to respond to or contest your filing.
5. Get Divorced
Having served the divorce papers to your spouse, the divorce proceedings will begin in earnest. If you’re going through a contested divorce, the court will set hearings to hash out property, child and spousal support, and child custody matters.
Uncontested divorces may proceed via written affidavits, which will basically attest that the divorcing couple agrees on property, child and spousal support, and child custody matters. Because uncontested divorces operate on a no-fault system, there will be no discussions about who to blame for the dissolution of the marriage.
The Fairfax County Circuit Court has a comprehensive checklist of the affidavits and other documentation you’ll need to prepare and submit to pursue an uncontested divorce.
Once all the paperwork is in, the presiding judge will sign the Final Order of Divorce.
How Property Is Divided in a Virginia Divorce
Virginia is an equitable distribution state. This means that the courts have the authority to fairly divide marital property—both assets and debts—between divorcing spouses. Marital property is anything that a spouse earned or acquired during the course of the marriage. An exception to this is an inheritance a spouse received while they were married.
If a property settlement agreement has been established, as with no-fault divorces, this process is easier. Lacking that agreement, the courts must then first assign which assets and debts are marital property, separate property, or hybrid property before the division of jointly owned property is pursued.
“Fairness” does not mean that assets are evenly split in half; the court assesses several factors to determine distribution. Among the considerations are the length of the marriage, the contribution of each spouse to the acquisition and maintenance of the property, tax consequences, and even the physical and mental condition of each spouse.
Virginia Divorce FAQs
For those who are not receiving close guidance from attorneys, the process of filing, pursuing, and obtaining a divorce may seem a bit overwhelming. The following items provide easy-to-consult references for divorce proceedings in Virginia.
Legal Resources for Getting a Divorce in Virginia
Although there are avenues available for Virginia residents to pursue a divorce without hiring legal counsel, the laws remain complex, and the documentation and procedural requirements can be tedious. In addition to the guides above, the following resources are available to assist individuals filing for divorce in Virginia:
Guide to Pro Se Divorce Suits
A pro se divorce suit is a divorce where the petitioner represents themselves. The Fairfax County Circuit Court has released a comprehensive handbook regarding the procedures for representing yourself in an uncontested divorce. It contains procedural guidelines, thorough descriptions of the affidavits you need, and samples of forms that you need to fill out.
Virginia Legal Aid
The Virginia Poverty Law Center runs Virginia Legal Aid with the intention of assisting state residents, particularly those who meet income guidelines, with civil and criminal law matters. It maintains the Do-It-Yourself Divorce program, an online walk-through to help divorce petitioners prepare their affidavits and other paperwork. Before you begin, consult the Virginia Do-It-Yourself Divorce Worksheet and Virginia Divorce Instructions to make sure you meet the requirements.
Virginia Judicial System Self-Help Options
Virginia Judicial System Court Self-Help is a resource for self-representing litigants in Virginia and provides basic information about getting a divorce. It also leads site users to the lawyer referral service of the Virginia State Bar for petitioners in need of legal professionals.
The official websites of circuit courts (which handle divorces), like those of Fairfax County and Prince William County, also provide easy-to-follow resources for filing a divorce for both self-representing petitioners and those who have commissioned divorce attorneys.
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