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Virginia Divorce Procedure

Virginia uncontested divorce Procedure

I. Eligibility

Is the couple married?

Does at least one of the two wish a divorce?

Has at least one of the two lived in Virginia for at least 6 months prior to the divorce?

If the answer to any of the three questions is no, Divorce cannot be granted in Virginia until and unless all three conditions are met.

If the answer to all three questions is yes proceed to #II

II. Type of Divorce

A. An uncontested divorce is one in which:

The grounds for an uncontested divorce are separation for the statutory period (no-fault),

  1. If the couple has lived one year separate and apart. or
  2. If there are no children from the union and the couple have lived separate and apart for 6 months and there is a signed separation agreement described more fully in Virginia Code § 20-121.02; and

B. All of the issues have been agreed to by the parties;

C. Child support, spousal support, custody, and/or visitation is either

  1. Not Requested; or
  2. agreed in a written and signed agreement,
  3. and both parties have signed the final divorce decree.

B. If the couple can not meet the above conditions then a contested or fault based divorce is in view.

Setting the hearing

Who can hear an uncontested or no-fault divorce?

A.. The parties may elect to have the case heard by a judge

To have the case heard by a judge, the parties must comply with the following requirements:

  1. If the defendant has made an appearance, the Decree of Reference shall be endorsed by all counsel of record and any pro se party or notice must be given as required by Supreme Court Rule 1:13.
  2. If the defendant has executed a waiver or failed to enter an appearance after proper service, the complainant may submit the decree of reference without defendant’s endorsement.
Requirements to have uncontested divorce hearing before a judge
  1. File and serve the Bill of complaint
  2. Wait until the time to answer has passed or the defendant has answered or filed a waiver.
  3. Request a hearing by filing in the Clerk’s Office a Hearing Request. The moving party then sends a copy of the Hearing Request to the other party or counsel.

The following documents must be submitted with the Hearing Request:

  1. The original divorce decree and two copies signed by both parties, if required. NOTE: The signature of a party who is legally entitled to notice is not required if the party is served with notice of the hearing and a copy of the proposed divorce decree.
  2. The original of any separation agreement;
  3. Proof of service of the bill of complaint and/or waiver;
  4. An original, completed VS-4 form (form available from the clerk’s office)
  5. If requesting restoration of former name, a properly completed typed order.

When the Hearing Request is filed in the Clerk’s Office, the case will be reviewed by a law clerk.

If all requirements have been met, the judicial assistant will transmit a Scheduling Notice to the moving party’s attorney by facsimile (and place fax confirmation sheet in the file), The Scheduling Notice will inform the party that the hearing request is approved. It will also inform the party of any additional requirements court reporter, original service return, etc.)

If all requirements have not been met or there are unusual evidentiary requirements, a Rejection Noticewill be sent along with a Correction Form stating the reasons for the rejection and listing the required corrections and/or the requirement that the case must be set for hearing on the duty judge docket. The judicial assistant will forward the rejection and correction notices to the clerk’s office, which will place such rejection and correction notice in the attorney’s box. Any corrections must be made and the necessary documents submitted to the Clerk’s Office

Communications with the law clerks must be in writing or by e-mail and are limited to the matters in the Correction Form.

If depositions are intended to be used, the approval of a judge is required before a hearing will be permitted.

Procedure for scheduling a hearing before a Judge

The case can be scheduled for a hearing only if the law clerk has mailed the moving party a Scheduling Notice. Within 21 days from the date of the Scheduling Notice the moving party must contact the docket clerk to schedule the hearing. Failure to contact the court within such 21-day period may result in having to resubmit another Hearing Request for further review before a trial date can be set.

5. Hearing before the judge

  1. A continuance of the scheduled hearing must be approved by a judge and will not be granted except for good cause shown.
  2. The moving party and the witness must appear in person at the hearing when set.
  3. Counsel must present the evidence to prove the grounds for the divorce and any other relief that is sought.

The court has approved form questions: Questions for Complainant and Questions for the Witness.

  1. No changes or corrections will be permitted at the hearing, other than a motion for a no-fault divorce pursuant to Virginia Code § 20-121.02.
  2. If required by law, the non-moving party must be served with notice of the hearing and a copy of the proposed divorce decree. Notice must be served 7 days prior to the hearing date; and a copy or the original of the proof of service must be filed at least 5 days prior to the hearing date. The original proof of service must be brought to the hearing if it is not filed earlier (Virginia Code § 20-99).
  3. Generally, the final decree will be entered at the hearing. The Clerk’s Office will mail certified copies of the final decree if the parties provide sufficient copies and a self-addressed, stamped envelope.
  4. If the moving party fails to appear at the hearing, the case may be dismissed after a 30-day review period.

Court Reporter Requirement

A court reporter is required if a party was served by an order of publication or the equivalent and has not appeared. The court will not provide the court reporter. Council for the moving party must arrange to have a court reporter present at the hearing. A final decree will not be entered until the transcript is filed with the court.

Restoration of former name Incident to a Divorce

Virginia Code § 20-121.4 provides that upon decreeing a divorce, a party who changed his or her name by reason of the marriage, may motion the court to restore such party’s former name or maiden name by a separate order meeting the requirements of § 8.01-217. This motion must be made at the hearing and you must submit with your hearing request a properly completed typed order along with the clerk’s recording fee payable to the circuit court clerk.

Use of An Attorney

Each party involved in a divorce matter is strongly encouraged to consult with an attorney so that the legal effects of the proceedings may be fully explained. While it is your right to proceed without an attorney, if you do so, you may forever, unknowingly waive your rights to custody or visitation, child or spousal support, equitable distribution of property, and other legal claims arising out of your marriage. The law clerks and the clerk’s office staff and judicial staff are not permitted to give legal advice.

Questions for Complainant

  1. State your name.
  2. State your address.
  3. Are you married?
  4. Were you married on (date) in?
  5. Are you and your spouse over 18?
  6. Were you or your spouse residents and domiciliaries of Virginia for at least six months preceding the filing of this divorce?
  7. (Military members): Were you or your spouse stationed in or did you reside in Virginia for at least six months preceding the filing of this divorce?
  8. Have either you or your spouse been incarcerated in a mental or penal institution at any time since the filing of this divorce?
  9. Are you and your spouse mentally competent?
  10. Have either you or your spouse been a member of the armed forces of the United States on active duty at any time since the filing of this divorce?
  11. Did you and your spouse separate on?
  12. When you and your spouse separated did one of you intend for the separation to be permanent?
  13. a. If not, when did one of you form that intent?
  14. Since the date of the separation, have you and your spouse lived separate and apart, without Co-habitation and without interruption?
  15. Are there any children born or adopted of the marriage? Are their names and ages:
  16. Have you and your spouse entered into a written and signed property settlement agreement? Is this it?
  17. Do you want the court to affirm, ratify and incorporate the property settlement agreement into the final divorce decree?
  18. 16. Is there a request to have a former name restored? What is it?
  19. Do you want the court to grant you a divorce based upon the grounds of having lived separate and apart without cohabitation and without interruption for a period in excess of one year (six months)?

    20. Questions for the Witness

    Note: The testimony of the moving party must be corroborated by a witness who is able to answer the following questions.

  20. State your name and address.
  21. Do you know the parties in this case?
  22. How do you know the complainant/defendant?
  23. How long have you known the complainant/defendant?
  24. Have they lived separate and apart and without cohabitation and interruption for one year/six?

    25. Virginia allows individuals to proceed with a divorce without counsel, however anyone considering a divorce is encouraged to consult with an attorney in order to insure that the legal effects of the proceedings are fully explained.&; While it is your right to proceed without an attorney, if you do so, you may forever, unknowingly waive your rights to custody or visitation, child or spousal support, equitable distribution of property, and other legal claims arising out of your marriage.&; Web site which sell guides and forms, paralegals, law clerks, the clerk's of court's office staff and judicial staff are not permitted to give legal advice.