There are two paths for divorce in Virginia. If the divorce is amicable, a party may agree on drafting a contract dispersing all assets or determining custody of any children. It also may contain retirement details, determine how taxes will be filed, or assign debt. This contract is called a property settlement agreement.
In Virginia, parties proceeding with a property settlement agreement must live separate and apart for 6 or 12 months before filing. For couples with children, 12 months of separate living arrangements are required, even with a property settlement agreement. For couples without children, it’s 6 months. The property settlement agreement may also outline exact living arrangements for the 6/12 month time frame. Once the required time apart is fulfilled, a couple seeking separation may now file for an uncontested divorce. Upon the court’s signing of the final decree, the divorce is completed.
The second route for divorce occurs when parties cannot agree on the details of the separation. For this path of divorce, 12 months of separation are also required. If after this period, no property settlement agreement has been outlined, a spouse may file a complaint. This initiates a contested divorce process. At any time during the contested divorce process, the parties may come to an agreement and sign a property settlement agreement.
The spouse receiving the complaint will then have 21 days to submit an Answer to the complaint and a counterclaim, which is their complaint for divorce. After the counterclaim, the first spouse then also has 21 days to provide an Answer to the counterclaim. At this point, a Pendente Lite hearing would be set. A Pendente Lite hearing is a temporary hearing in which a judge will temporarily handle housing, custody, and financial concerns, as well as set the final hearing date. At the final hearing on the matter, the judge will hear evidence. The judge could provide a ruling on that date and require one of the attorneys to draft the final decree to be signed by both attorneys. Usually, the judge will take a few weeks to provide a written ruling to the parties and require one of the attorneys to draft a final decree in line with the Court’s ruling. Upon the court’s signing of the final decree, the divorce is completed and finalized.
Is There Any Benefit To Filing For A Divorce Before Your Spouse In Virginia?
In Virginia, there is no benefit to filing a divorce before your spouse. If your spouse filed before you, you may respond with a complaint of your own. This is called a counterclaim.
My Spouse And I Are Divorcing. Is Mediation Required In Virginia?
Virginia has what is called a Judicial Settlement Conference option. During this conference, both parties can make their case to a retired judge, who will then give feedback in hopes of assisting the parties to agree on common terms. This process is beneficial because it could result in agreement and save on litigation costs.
It is at the discretion of each Virginia judge whether to require a Judicial Settlement Conference. However, parties are not required to come to an agreement, but it is encouraged, if possible.
What Happens If My Spouse And I Can’t Agree On Custody Or Any Other Matters In Our Divorce?
On the occasion that the parties cannot agree on any details of the separation/divorce, the process becomes a contested divorce, and the judge will make all remaining decisions.
Once One Party Files For A Divorce In Virginia, What Is The Timeline Or The Steps That Happen Next Up To The Point Where The Decree Is Finalized?
Upon the filing of a Complaint for divorce by the first party, the second party must file an Answer within 21 days. The second party may also file a counterclaim within 21 days. If they file a counterclaim, the first party then has 21 days to file an Answer to the counterclaim. At this point, the parties will be able to request assistance in the form of a Pendente Lite hearing.
A Pendente Lite hearing is an opportunity for each party to request temporary relief from the court in the areas of custody and visitation, child support, and spousal support, and determine exclusive possession of the marital residence. Information and documents are also exchanged between parties during this time. The decisions at the Pendente Lite hearing are temporary. Final decisions are made at the final hearing.
During the final hearing, each party will put forth any evidence relating to the factors of custody, visitation, support, debt, and/or equitable distribution. Subsequently, the judge will write a letter of opinion, outlining their ruling on all issues.
Once the judge issues their ruling, the lawyers draft a final decree. Each party will review it, ensuring agreement. If attorneys are present, the attorney for each party will sign. If there is no attorney present for a party, either the pro se party will sign it or the judge will forego the need for the pro se party’s signature.
For more information on Family Law In Virginia, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (804) 207-9381 today.
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Separation
The Pendente Lite Hearing
At a pendente lite hearing, the court can order temporary custody, visitation, spousal support, and child support. This is also where you would determine who gets the exclusive use and possession of the marital home.
At a pendente lite hearing, the court may also order one spouse to pay temporary support to the other spouse until the final hearing. This could allow the children to remain in their home with one parent while the case is pending.
As you go through the process of separating from your spouse, you may find yourself in need of child support or custody agreements. You can file for these things through your juvenile domestic relations district court while you wait to be able to file for divorce. This can help provide some stability during a difficult time. However, if you and your spouse are still living in the same home, the court will not grant your request in the state of Virginia.
Domestic Violence Situations & The Preparation Phase Of The Divorce Process
If you’re dealing with domestic violence, the best thing you can do is get a protective order. Preparation for this case is different than others because, in this instance, people are trying to protect their lives instead of money or assets.
For people in this situation, the first and best thing they can do is seek a protective order. A protective order can give a victim of domestic violence exclusive use and possession of their home, as well as temporary custody of any minor children. It can also require the abusive spouse to continue paying for housing, utilities, and car payments. In some cases, the victim may also be granted the use of a vehicle or possession of a companion animal. Protective orders are meant to be a tool to help keep victims safe from further harm.
It is important to note that an emergency protective order is just the first step to getting the protection you need. An emergency protective order expires 72 hours after it is issued, which should provide enough time for the victim of domestic violence to go to the juvenile domestic relations district court and seek a permanent protective order. Once the party being affected by domestic violence has a protective order and feels safe, we can start focusing on the divorce portion.
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Is There Any Benefit To Being The First To File?
There is no real benefit to being the first to file for divorce. All it does is give you the chance to present your case first during the trial. That is it. The judges don’t automatically rule in favor of the person who filed first. They don’t say, “Well, the wife filed first, so the wife wins.” or “Husband filed first, husband wins.” That’s just not how it works.
There is a lot to be said for being on the defensive side in an argument. You can learn a lot about your opponent’s position and what they are trying to achieve by letting them go first. This way, you can respond more effectively and with a clear strategy.
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