Deciding to Divorce in Virginia? Frequently Asked Questions!

Choosing the path of divorce can be a very emotional one. In this post we will provide a brief overview of some common questions and concerns.

Is there such thing as a “legal separation”?

• Unlike some other states, in Virginia there is nothing that can be filed with the court to certify that you and your spouse are “legally” separated. However, if you are separating, an attorney can advise you regarding what will constitute the “date of separation” and also what steps you can use to protect yourself during separation.
• Usually, when you ultimately file for divorce, the date that you began living in separate households is considered the date of separation.  There are many exceptions to this; it is possible to be separate in the same household.  You should speak with an attorney if you have additional questions regarding legal separation.

How long do I have to be separated in Virginia before I can get Divorced?

• It depends! Under certain fault-based grounds for divorce, you may be entitled to a divorce regardless of how long you and your spouse have been separated . . . however, most divorces are finalized based upon a statutory separation period.  The general rule is that you and your spouse need to be living separate and apart, continuously, for one year.
• Note, there is an exception to this: if you do NOT have minor children in common with your spouse AND you have a Property Settlement Agreement that has been signed by both parties, you can file for divorce after being separated for only six months.

What is a Property Settlement Agreement?

• A property settlement agreement (a.k.a. “PSA”) is a document entered into between both spouses that explains how the parties are dividing assets, debts, spousal support, custody, visitation, and child support. It is, essentially, a divorce contract that spells out all the terms of the parties’ separation.  The kicker is it has to be agreed upon by both spouses for it to have any legal effect.
• Note: if a Juvenile and Domestic Relations Court is already handling the custody, visitation, and/or child support matter, those do not necessarily need to be included in the Property Settlement Agreement.
• A property settlement agreement is a very valuable option for most spouses because it usually makes the divorce process easier—it is also cost-effective and a much less emotional process than going through a full, contested divorce hearing.

Are there different kinds of divorces in Virginia?

• Yes! Although divorces are almost always unique, the method of filing and also of finalization is often the same.  Generally speaking, there are two types of divorce.
  • Uncontested (“No Fault”) Divorce: This is normally considered the easiest, fastest, and least-expensive divorce. There are no issues in dispute–both parties have agreed on the division of debts, assets, and liabilities and the parties are filing based upon a separation period. There are normally no court appearances required by the parties or their attorneys.
  • Contested Divorce: In Virginia, most people consider a divorce to be “contested” if there are any issues in dispute (i.e. division of assets/debts, custody, visitation, support) or if a fault ground for divorce is being alleged (i.e. adultery, cruelty, desertion).  Unless an agreement is reached between the parties, the divorce will be litigated in Court by presenting evidence to the Judge who will make a ruling on the disputed issues.
  • Note, this certain jurisdictions have different procedures which an attorney can explain to you.

How Do I File for Divorce?

• Divorces are filed in Circuit Court and are usually filed in the jurisdiction where the parties last resided.  Although you are not required to have an attorney to file for divorce in Virginia, it is very wise to obtain one if you wish to file for divorce.  There are many legal requirements that can make it extremely difficult and time-consuming if you elect to file on your own.

Additional Questions?  Visit our website at boykonapier.com for additional information regarding family law and divorce and call today to schedule a consultation at (804) 658-3418, or contact us via email.