- Do I need to hire an attorney?
- What are the grounds for divorce in Virginia?
- When can I file for divorce?
- How will my assets be divided?
- What if I am not married?
- How is the divorce finalized? How long does it take? What can I do to enforce or modify an order?
- What are the top five things to know if I am divorcing?
Do I need to hire an attorney?
The decision to hire an attorney is a personal one. Hiring a highly qualified and respected family law attorney is the most important step you should take to protect your legal rights in a divorce. Consider a referral from family, friends and co-workers; or search data bases or the internet; or contact the court in your jurisdiction for a lawyer referral. Regardless of the method you choose to find an attorney, it is important to consult thoroughly with your prospective attorney, as you must be comfortable with and trust him or her.
What are the grounds for divorce in Virginia?
Virginia law provides for divorce on both a “no-fault” and a “fault” basis. Most divorces are based on the no-fault grounds of living separate and apart from your spouse for one year or six months (if you have a property settlement agreement and no minor children). However, parties often file for divorce on fault grounds of adultery, cruelty (also referred to as “constructive desertion”) or desertion, and then amend the grounds to no-fault as a part of settlement when a Final Decree of Divorce is entered.
When can I file for divorce?
If you are seeking a divorce based on fault grounds, you may file a Complaint for Divorce as soon as the circumstances giving rise to the grounds exist, even if you are not physically separated from your spouse. No-fault divorce requires that you live physically separate and apart from your spouse for one year (six months if you have no minor children and a signed property settlement agreement). It is possible, although rare, for parties to live completely separate and apart while residing at the same address. You should ask an attorney for guidance with the “separate and apart” requirement, given the circumstances and facts of your case.
How will my assets be divided?
In a divorce case, equitable distribution (or ED) is the process by which the Court divides marital property. The Court’s job in this trial has two steps. The first is to determine what property is marital, as opposed to separate property. The second step is to divide that property. There is no presumption that marital property must be divided equally; the statute lists a number of factors, which the Court is to consider before arriving at an equitable award of marital property. Most cases end up with close to a 50-50 division of assets. Parties may agree on their property rights by signing a property settlement agreement.
What if I am not married?
If you are not married or do not have grounds for divorce, and your dispute involves children and/or support, you may file a Petition for support, custody, visitation, etc., in the Juvenile and Domestic Relations District Court.
If you are not married and your dispute revolves around joint assets, you may file an action in Circuit Court for contract, partition or quantum merit.
How is the divorce finalized? How long does it take?
The divorce is finalized when a judge signs your “Final Decree of Divorce.” It is important to remember you are NOT divorced until this decree is signed. A contested divorce usually takes eight to18 months after filing of a Complaint for Divorce. The more contested the hearings/trials, the more expensive your case will be in terms of attorney’s fees and the longer it will take. If the parties have an agreement, and simply need to finalize their divorce, as long as the statutory six-month or one-year period has passed since the parties separated, a divorce can be finalized within four to six weeks. Before considering settlement possibilities, however, it is imperative that you understand the legal process that will occur if you do not settle.
What can I do to enforce or modify an order?
Either party may file a “post-decree” action at any time after their divorce is final. If you want to enforce an agreement, you would have to file a Petition for a Rule to Show Cause asking that the Court to hold your ex-spouse in contempt of court for violating the Order. In Virginia, unless the parties agree, spousal support and the division of assets may not be modified. However, custody, visitation and child support are modifiable when the circumstances of the parties have changed and when a change would be in the child’s best interest. Generally, these matters must be filed with the same court that divorced the parties.
What are the top five things to know if I am divorcing?
- Consult with an attorney
- Find a therapist for yourself and your children
- Copy all important financial documents, including tax returns and attachments
- Open new bank accounts and remove all funds in joint accounts
- Never say an unkind word about your soon-to-be ex-spouse — this can only harm your case and your relationship with your children