How to file for divorce

The Process of a Virginia Divorce

One of the most difficult and consequential decisions individuals ever have to make is to get a divorce. If you have exhausted all attempts to save your marriage and believe there is no other alternative, then you must begin preparing for the marriage dissolution process. In Virginia, the divorce process can take several months or longer, depending on the type of divorce you are seeking and other specific circumstances of your case.

Understanding the Virginia Divorce Process

Before you can file for divorce in Virginia, you need to check and make sure you are eligible.  The first thing to look at is the residency requirement. Under Virginia law, the spouse who is requesting the divorce must have lived in the Commonwealth for at least six months prior to filing.

Once you have established that you meet the residency requirements, you need to decide whether it will be a “no-fault” or fault-based divorce.

No-Fault Divorces

A no-fault divorce is generally simpler and easier, because you do not have to prove “fault” in court. That said, there are some important requirements that must be met before you can choose the no-fault option:

  • Meet the residency requirement: For a no-fault divorce, both spouses must have lived in Virginia for at least six months before the divorce is filed.
  • Prepare a separation agreement: To get a no-fault divorce in Virginia, you will need a written, voluntary separation agreement. This agreement addresses important issues such as division of marital property, alimony/spousal support, child support, and child custody and visitation. If you have a fairly simple and straightforward case and you and your spouse agree on everything, you may be able to negotiate this agreement on your own. Keep in mind, however, that this agreement is likely to be the basis for your final divorce settlement later on. And even with uncontested divorces, there may still be small areas of disagreement that need to be worked out. For these reasons, it is usually a good idea to negotiate this agreement with the help of a skilled family law attorney who is looking out for your best interests. 
  • Live physically separate and apart: To file for a no-fault divorce, you must live separately from your spouse for at least six months if you have no minor children, and at least one year if you have children. “Living separately” generally means living in different locations and ending your spousal relationship. This separation must be continuous and at least one of the spouses must have the intention of separating permanently. Any interruption to the separation (even cohabitating for one night) will restart the clock and delay the process.

Fault-Based Divorces

Virginia allows you to file for a fault-based divorce based on one of the following grounds:

  • Adultery: Clear and convincing evidence of adultery or other sexual acts outside of marriage.
  • Cruelty: Reasonable fear of bodily harm or extreme emotional harm.
  • Willful desertion or abandonment: One party moving out of the marital residence without the consent of the other.
  • Incarceration: A felony conviction with a sentence of at least one year. 

There are some advantages to seeking a fault-based divorce. For one thing, there is no waiting period if the divorce is sought based on adultery or felony conviction. Secondly, fault may be a factor in deciding issues such as division of marital property, spousal support, and child custody. That said, it will not be the only factor, and there may be other issues that are more important in making some of these determinations.

The downside to a fault-based divorce is that you will have to prove fault in court, which will make the case more complicated. Your spouse may fight the accusations of fault you are making, which could lead to a costly and protracted court battle. For this reason, pursuing a fault-based divorce should only be done if you have sufficient evidence to prove your claims, and if you have a seasoned divorce lawyer in your corner with the proven ability to make a strong argument on your behalf.

Contact the Straw Law Firm for Help with a Virginia Divorce

Getting a divorce in Virginia can be confusing and complicated. Before you begin the process, call the Straw Law Firm at (434) 616-2760 to go over your options and determine the best legal route for your situation. You may also message us through our online contact form or stop by our Forest, VA office in person at your convenience.