Virginia Uncontested Divorce

This information is an overview of the uncontested Virginia divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those "do it yourself divorce" filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in Virginia.

To divorce or legally separate in Virginia, one spouse must be an actual and bona fide resident and domiciliary of the commonwealth for at least six months before filing the complaint. Persons in the military who are on duty in the commonwealth for at least six months are Virginia residents. The divorce may be filed in 1) the county or city in which the spouses last resided together or 2) at the option of the plaintiff in a) the county or city where the defendant resides, if the defendant is a resident of Virginia or b) in the county or city where the plaintiff resides if the Defendant is a nonresident of Virginia.

Virginia has personal jurisdiction over persons properly served when the Defendant 1) is a Virginia resident at the time the action was filed; 2) lived in Virginia when the grounds happened; 3) maintained a home in Virginia; 4) executed an agreement to pay support to a Virginia resident; 5) the parties lived in the commonwealth at the time of the separation that is grounds for divorce; 6) the parties lived in Virginia at the time of the separation that is grounds for divorce.

In Virginia, the filing spouse is called the Plaintiff; the responding spouse is called the Defendant. Actions are filed in Circuit court, Juvenile and Domestic Relations, or Family court.

Grounds for divorce are No-Fault, which means 1) living separate and apart without cohabitation for one year or 2) living separate and apart for six months if there are no children and the spouses have entered into a separation agreement.

Fault grounds are 1) adultery (including homosexual acts), 2) abandonment, 3) conviction and imprisonment for one year, 4) cruelty, and 5) willful desertion.

In Virginia, a person may receive a divorce a mensa et thoro (from bed and board, or a legal separation), but the grounds are different from an absolute (a vinculo matrimonii, or from the bond of marriage). Grounds for a divorce a mensa et thoro include 1) reasonable fear of bodily harm, 2) desertion or abandonment and 3) cruelty.

Virginia permits a simplified divorce. The couple lives separate and apart for six months, and the Defendant spouse waives service of process by signing a waiver in the presence of the clerk of court. In this case, any testimony by the other spouse must be corroborated by a witness.

To begin an uncontested divorce, the Plaintiff files a Bill of Complaint for Divorce. If the Defendant agrees with the action, he or she can file an Answer to the Complaint. By so doing, he or she accepts personal jurisdiction of the court. If not, the Defendant must be served a Summons, which is served on him or her along with a copy of the Complaint. If a Defendant answers the Complaint and files an Acceptance/Waiver Form, the action can move along uncontested.

When required, the Service of Process may be done by the Sheriff, who then files a Return of Service, or by a professional process server or any competent person over 18, who then returns an Affidavit of Service, which is filed. Service may be done by any adult except the Plaintiff.

Like other states, Virginia requires what is termed a "diligent search" to locate a spouse who cannot or will not be found. After this effort has been made, the Plaintiff may serve the Defendant by publication. This requires that the Plaintiff file an Affidavit for Service by Publication. After the court received it, the Plaintiff must prepare an Order for Publication. After the order is approved, the clerk arrange for the publication of the order in a newspaper where the missing spouse may see it.

If the Defendant fails to file an Answer within 21 days of service, the Plaintiff may move for a divorce by default. If, however, the Defendant is in the military, the action may not proceed by Default because the Defendant enjoys protects under the Servicemembers Civil Relief Act.

If the Defendant files an Answer and thereby agrees to the action, of if he or she fails to respond within 21 days of receipt, the Plaintiff may file a Request for an Ore Tenus Hearing. An Ore Tenus Hearing happens in a uncontested divorce when a divorcing spouse appears in court with a witness and testifies directly before the judge.

In Virginia, courts may end the marriages when one spouse meets the residency requirements of the commonwealth. For a court to decide custody, support or property issues, however, the court must have personal jurisdiction over the Defendant. Courts have such jurisdiction when a Defendant has been property served and Virginia has personal jurisdiction.

In Virginia, even in an uncontested divorce, the Plaintiff must prove the essential facts of the case. This hearing may be before a commissioner or a judge. If the action is before a commissioner, the Plaintiff must file a Decree of Reference.

At this hearing, the Defendant needs the following papers:

> a Vital Statistic Form VS-4, which is required in some counties;
> a copy of the marriage license (or a witness present at the marriage);
> Child Support Guidelines, if there are children;
> the Separation Agreement, which may have already been included with the filing of the complaint;
> corroborating witnesses;
> the Final Divorce Decree, which may be a form for spouses with children and without children.

A contested divorce is one where the judge decides for the divorcing spouses what they cannot decide between themselves. The trajectory of a contested divorce begins with the filing of the Complaint, but its course is impossible to predict because both sides often continue to negotiate even as they prepare for trial. If the action comes to trial, the case is conducted as a civil action under the rules of evidence. This means that the parties may not testify to anything other than what they have personal knowledge with the exception that each may testify about what his or her spouse said. Contested divorces that go to trial are expensive and enervating, and good divorce lawyers work heroically to avoid them if possible.