My spouse and I have decided to divorce. What are our options?
Each divorce, like each relationship, is unique. Some couples find they are able to end their marriage with very little court involvement. Other divorces are more complex, requiring more legal counsel and court oversight. No matter what your situation is, seeking legal advice from a qualified divorce attorney is a step in the right direction.
In an uncontested divorce the spouses have already agreed upon all the terms of the divorce and require the legal support an attorney for drafting and filing legal documents. Couples entering into an uncontested divorce must have in place the requisite separation documents and have met the required time allotment to file for a divorce.
Many couples in the midst of a relatively amicable divorce find that mediation is a good option for them. In this type of divorce proceedings both parties meet with a neutral mediator who will help negotiate any minor differences regarding the divorce. The mediator will then create all the necessary legal documents.
Like mediation, a collaborative divorce takes place outside of court. A collaborative divorce does require that each spouse is represented by legal counsel. With collaborative law each spouse is assured that his or her legal interests are represented by counsel, but not determined by the court.
When a couple finds they cannot agree on some or all of the issues regarding their divorce, they may have to go to court. In litigation each spouse maintains legal representation and a court makes the final decisions regarding contentious aspects of the divorce.
What is the residency requirement to file a divorce in Virginia?
Either the husband or wife must have been a resident of the Commonwealth of Virginia for six months prior to filing the complaint for divorce.
Members of the armed forces who have been stationed in Virginia for a minimum of six months, or having resided in Virginia for six months prior to being stationed overseas may file for divorce in Virginia.
What is the difference between a “no fault grounds” and a “fault grounds” for divorce?
In a no fault divorce neither spouse has to prove that the other did wrongdoing, they just need to meet the mandatory separation period. For couples without minor children who have entered into separation agreements, this legal separation period is six months. For all other couples, the legal separation period is 12 months.
Virginia recognizes three main reasons to file for a fault based divorce: adultery, cruelty and desertion/abandonment.
What is separation and why is it important in a no fault divorce?
According to Virginia law, separation occurs when a couple ceases to live together as husband and wife with the intent and purpose of divorcing. Typically, this occurs when one spouse moves out of the marital residence. However, in certain circumstances, it is possible for parties to live separately in the same house. A separation agreement, which can be crafted before or after the couple has physically stopped living together, is a legal document that can cover any number of issues such as division of debts, spousal and child support, child visitation and custody, property division, insurance, taxes, etc. While separation agreements are not mandatory, they settle the vast majority of cases in Virginia.
Separation is important, especially in a no-fault divorce, in order to meet the required separation time period allotted for the final divorce to be granted. Also, assets amassed after the separation may be held to be separate property prior to the legal dissolution of the marriage.
What is the process for filing a fault based divorce?
There are a number of steps to the process of filing a fault based divorce:
- A spouse obtains legal counsel who prepares and files a complaint.
- The complaint and a summons are served to the other spouse.
- The spouse now has up to 21 days to respond to the complaint.
- Each spouse’s attorney will request documents, information and evidence regarding any issues involving the divorce.
- If the divorcing couple can reach a settlement all the necessary paperwork is drafted by their attorneys and submitted to the court for finalization.
- If the divorcing couple cannot reach an agreement, they will go to trial where each attorney will present evidence to support their argument. The judge will hear each side and issue an order which both parties must follow.
Of course, there are many other things that may or may not occur during your case. The above is a general idea of the major issues that can occur.