Virginia Uncontested Divorces: When the Fighting is Over

Before you read this blog post, please review my disclaimer by clicking the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

[UPDATE:  Some information contained in this blog post is no longer accurate due to subsequent changes in the law.  Please see my changes in the law blog post for 2019 for more information.]

Introduction

Given the entire industry of family law and the horror stories we hear about cripplingly expensive divorces, you might be surprised to learn that most divorces are short, simple and relatively cheap.  Generally speaking, divorce tends to be more likely to go to a contested trial than other areas of litigation, but that's because there are, in many cases, about five areas in which there are potential issues to dispute (grounds of divorce, property division, spousal support, child support, and child custody/visitation) - so while each of those five areas is about as likely to settle as any other type of litigation, settling all five in one case is much more challenging.  That being said, divorce cases being "more likely" to go to trial is not the same as saying divorce cases "generally do" go to trial - they do not.  Most cases ultimately do settle completely - it's just, in my experience, closer to 60-65% of divorce cases, as opposed to about 85-90% of other types of cases.

So, what happens if, despite the hurt feelings and all the emotions that caused your marriage to end, you find yourself in a situation where you and your soon-to-be ex actually are in agreement on the five issues I listed above?  In today's blog post, I hope to cover the basics of obtaining an uncontested divorce in Virginia.

First, Get it in Writing

If you are in agreement on everything, it would be to everyone's benefit to get it in writing.  Technically, you can do this on your own - write down your agreement, each of you signs it in front of a notary public, and suddenly you have a binding marital agreement (see this post for more on marital and pre-marital agreements).  That being said, there are many ways that you can screw up putting this together, so it's always best to have a lawyer draft your agreement (typically referred to as a "separation agreement").

So, why have a signed agreement?  Well, first of all this allows you to get divorced faster if you do not have children (after six months of separation instead of a year).  Moreover, this prevents your spouse from backing out of your agreement at the last minute, as separation agreements are very hard to challenge.  Finally, it provides clear guidance to attorneys, courts and each spouse going forward as to what is supposed to happen - much clearer guidance than you typically get without a written agreement.

Next, Wait the Requisite Time Period

If you do not have children and you have a signed separation agreement, you can get divorced after six months of separation.  If you do have minor children or do not have a separation agreement, you must wait until you have been separated for a year.  In either case, you cannot take further action to get divorced until that time has elapsed.  During the waiting period, however, you can start getting your ducks in a row so you can complete the remaining steps as quickly as possible.

Identify a Corroborating Witness

To complete your divorce you will need someone to "corroborate" your eligibility for divorce.  This should be someone who is not you or your spouse, who knows both you and your spouse, knew when you and your spouse separated, and has visited you in your home at least several times since your separation.  Your corroborating witness can be any adult other than you or your spouse, so it does not matter if they are "biased" (such as a parent, sibling, or adult child).  It is best to talk to your corroborating witness as soon as possible to make sure they are comfortable serving in that role.  Let them know they will not need to come to court and will just be signing an affidavit.

File Your Paperwork in Order

Once the time period for separation has passed, it is time for you to file.  It is very important that you file your paperwork in Order however.  The paperwork you will need to file in court is as follows (and in this order):

• Complaint for Divorce (initiates the divorce suit)
• Acceptance/waiver of service of process and notice signed by your spouse (allows divorce to proceed faster)
• Affidavits for divorce signed by you and your corroborating witness
• Completed Virginia State Form VS-4
• Final Decree of Divorce signed by you (or your attorney) and your spouse

Note that the Acceptance/waiver, affidavits, VS-4 and Final Decree can all be filed at the same time - only the Complaint has to be filed first.  The above order must be followed, however, if you do not file the other documents at the same time.  If you file all of those documents, in that order, and they are completed properly, your divorce should proceed without you or anyone else ever having to appear in court.  You will probably have to wait about two or three weeks for your Final Decree to get in front of a judge, but then it should be signed and mailed back to you (assuming you provided the court with a self-addressed, stamped envelope).  That's it - you are divorced.  Note, however, that under Virginia law you cannot get re-married until 30 days after your divorce is entered.

Why Hire an Attorney

So, the above process probably seems simple enough - so why hire an attorney for it?  Well, because as simple seeming as it is, it is very easy to screw up if you are not familiar with the process.  In fact, I have many clients come to me with cases they filed where their divorce got rejected, and often their case is so messed up by the time it gets to me I have to close their original case and start over from scratch - which is typically more expensive than if they had just come to me in the first place.

So, what's so easy to screw up?  Well, it's easy to have a separation agreement that doesn't actually cover everything it has to, or leaves important matters out.  It's easy to not include all the statutorily required statements in the Complaint, Acceptance/waiver, affidavits, or Final Decree (the affidavits and Final Decree are the toughest since there are things that are required by law to be in them that many people do not know about).  While you can often get samples from your local courthouse, they usually are not perfect, and moreover, they usually do not include sample affidavits, meaning you will have to go to court for what is called an ore tenus hearing, rather than proceed with a simple affidavit.

On top of it all, an attorney for an uncontested divorce is much cheaper than an attorney for contested divorces.  Attorneys typically charge flat fees for uncontested divorces - and depending on the complexity of the case, these fees can be as little as $600 (though $1,200 or so is more common, with up to $2,000 or so for more complicated cases that require drafting and negotiation of a separation agreement along with filing of the divorce itself).  Compare this to the $15,000 to $75,000 that a typical contested divorce runs (with atypical contested divorces I have heard of running as high as $250,000 to $500,000 in legal fees) and you can see how an uncontested divorce is a much cheaper option.

All in all, for the security that comes from having an attorney handling your uncontested divorce, the cost truly is not that high, and is certainly worth it.

Conclusion

Most divorces in Virginia are uncontested.  They require neither protracted litigation, nor even an appearance in court.  Hiring an attorney is the simplest way to make sure that your uncontested divorce runs as smoothly as possible.  If you are involved in a divorce where all matters are actually resolved (or look to be resolved fairly easily), please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an initial consultation.  Our initial consultations are free for up to half an hour!