The motto of my state, “Virginia is for Lovers”, rings particularly true when it comes to divorce law. Virginia is a huge proponent of marriage and does not make it easy to get a divorce, especially if a couple has children. A separation period of six months is required for people without children and for those with kids? An entire year. Now, I am originally from California where people get married and divorced as easily as they breathe, in fact, there is no separation requirement in California. A person can file immediately and the divorce is final in six months. So upon reading that a separation of 12 months is required before a divorce can even be filed here in Virginia, both surprised and disappointed me. Does Virginia think if they make people wait six months to a year to get a divorce that they’ll magically fall back in love and get back together? Why should those with children have to wait longer than those without them? Should people be punished for having children together? Does Virginia think the extra six months will throw these people back together? The legal requirement for separation before filing requires at least separate sleeping arrangements and a lack of physical intimacy. In Virginia this does not necessarily mean separate households, but it makes it harder to prove separation to the court if the parties are still living under one roof. Renewing physical relations negates the grounds for divorce.
Virginia is one of the few states that still allows fault divorces. A fault divorce is rooted in bad behavior; one spouse states that the other person was at fault for the divorce because of impropriety or poor conduct that subsequently led to the breakdown of the marriage. The only grounds for fault-based divorce in Virginia are: adultery, committing a felony, committing acts of cruelty (such as physical or mental abuse) or desertion of the other spouse—all of which must be proved in a court of law, meaning there must be evidence of the fault-based acts or an admission of guilt. In the case of a fault divorce situation, there is no required separation period. To file for divorce in the state of Virginia, either spouse must be a resident of Virginia for at least six months prior to filing.
A divorce is begun by filing a complaint. The spouse who files is the plaintiff; the other spouse is the defendant. The complaint must state that the plaintiff has met the residency requirement in Virginia, as well as stating the date and place of marriage, the name and birth dates of any children from the marriage, and a claim of one of the grounds for divorce. The plaintiff delivers (or serves) the papers to the defendant. If a plaintiff can’t personally serve the papers, a court order may be granted to publish the service of process in a local newspaper. The defendant must file an answer admitting or denying the allegations put forth by the plaintiff and may also raise any defenses or file counterclaims.
The next document drawn up in a case will be a proposed separation agreement — an indication that the parties wish to settle their dispute. The separation agreement in Virginia covers the following issues: court costs and attorneys fees, who gets what–property and personal property, retirement, debts, alimony, custody of children, child support, visitation, life insurance, medical insurance, etc. There is no such term as a legal separation in Virginia. However, a spouse may obtain a limited divorce, also called a divorce “a mensa et thoro” (from bed and board). A limited divorce may have some advantages in certain situations—to remain on health insurance or for tax benefits. A limited divorce also requires that there be grounds for divorce which are different than the grounds required for a final divorce. Grounds for a limited divorce are: desertion or abandonment, or cruelty. Divorces in Virginia can be contested—meaning, the parties cannot agree, either about getting divorced or about the terms of the divorce, such as the division of assets, allocation of debts, alimony, child support, or the custody of children, etc—which requires proof, or they can be uncontested, which are usually based on a mutual and voluntary separation of a minimum of six months. If the two people agree to be divorced, there must be a written Separation Agreement that makes adequate provision for the custody and support of the children from the marriage and makes a fair and equitable division of the marital property. There are also additional technical requirements, but the Separation Agreement is the essence of an uncontested divorce.
Uncontested divorces usually take two to three months after filing to be completed and contested divorces can take up to eighteen months. If the divorce is contested, and there is no appeal, the divorce will be final thirty days after the judge signs the final decree.