Virginia Uncontested Divorce

Understanding What Uncontested Divorce Means

• Just because you and your spouse have agreed to a no-fault divorce, that alone does not mean that you meet the criteria for an ‘uncontested divorce’ as we we use that term on this and other pages on the site.
• An uncontested divorce in Va means that the parties agree to be divorced (or at least not to interfere with the other’s request for the divorce). It also means that the parties have resolved all custody, visitation, marital property and support issues (or at least both parties must agree not to litigate them in the divorce court).
• Typically these issues are settled well ahead of any divorce filing in the form of a written Virginia Property Settlement Agreement (a/k/a “PSA” or “Separation Agreement”). There are additional technical requirements that must be followed before the uncontested divorce can be made final, but a pre-existing Property Settlement Agreement is the essence of an uncontested divorce in Va.
• Some people have been married such a short period of time that they have accumulated no property together, they have no children and do not intend to ask for support. In such cases, the divorce likely can safely proceed without a PSA. In all other cases, we strongly encourage a Property Settlement Agreement.

Online Virginia divorce sites can’t substitute for the advice of an experienced Virginia uncontested divorce attorney. An online divorce form doesn’t ever cover some benefits that communicating with an attorney can offer.

Complaint:
This is the document your attorney will draft following your initial visit to the office. It contains the essential factual allegations and legal elements which, when proven, would demonstrate to the court that you are eligible for a divorce. The elements contained in the typical no-fault divorce Complaint are:

The complaint concludes with a request that the court grant the plaintiff (the person filing for the divorce) a divorce from the defendant.

About a week after you have retained a divorce attorney, you will be asked to return to the office to review the Complaint for accuracy (to check for correct spellings of names, dates, etc.) and to sign it. Please do read the document carefully. While we rarely make such mistakes, one is possible, especially in spelling of names.

Divorce Filing:
The signed Bill of Complaint is mailed (or hand carried, for faster action–talk with your attorney about this option) to the Clerk of the appropriate Circuit Court. When marked “received” by the Clerk, your case is considered “filed.”

Service of Process:
After the case is filed, the Clerk will send a copy of the Complaint, along with a cover sheet called a “Summons,” to the sheriff of the jurisdiction where your spouse resides. It is the sheriff’s job to serve the Complaint and the Summons on your spouse. The Summons advises your spouse that a divorce action has been filed and if he or she wishes to oppose it, he or she has 21 days to file a response. Otherwise, a “default” can be entered. Actually, in Virginia, a divorce can never be granted “by default.” Evidence proving an entitlement to a divorce must always be presented. But if your spouse does not respond to the paperwork within 21 days, you can at least proceed to the deposition phase of the process without waiting any longer.

Oftentimes, the spouse doesn’t want the sheriff coming by the house or work site, and is willing to sign a “Waiver.” In the typical waiver, your spouse waives the requirement of actual sheriff service, waives the 21 day ‘response’ period, waives the requirements of other notices that might be required (so long as there is not a request for money, property, custody or visitation which is different from the provisions of any Separation Agreement), and states that he or she also wishes the divorce to be granted as soon as possible. Even with a waiver, you (the plaintiff) must still prove the facts alleged in the Bill of Complaint.

Affidavits:
In an uncontested divorce case, you generally will not need to appear in court to testify.  Virginia no longer requires a person to have a witness testify in order to obtain a divorce.  Va Code § 20-99.

A party to a divorce may choose to support his or her case through deposition or affidavit.  Depositions are most common in contested divorces.  For divorces filed after July 1, 2012, the evidence in a truly uncontested divorce can be presented by affidavit instead of by Depositions or live testimony. This makes the process of uncontested divorces much easier and the costs lower.

An affidavit is appropriate when i) both spouses have signed a settlement agreement to resolve all issues related to their divorce; ii) there are no issues to be resolved, so the Court needs to decide only what grounds exist to grant a divorce; or iii) the other spouse was personally served with the complaint for divorce, but failed to file a responsive pleading or show up for the court date.

At Denbigh Law Center, we will prepare the affidavit for you.  All you need do is read it and, if satisfied with its contents, sign.

Final Decree:

Once the affidavit and any separation agreement are finalized, they along with a final decree of divorce are submitted to a judge for review. The judge will read each document in its entirety to determine whether the substantive and technical requirements of granting the divorce have been met. If they have, the judge will declare that the parties are divorced by signing the final decree.
If a separation agreement has been submitted by the parties for approval by the judge, the judge will typically make the separation agreement a part of the final decree. The timing for the return of the final decree to our office is about 2 to 3 weeks after filing the affidavit.

Once the final decree is signed by the judge, you are divorced. Your divorce will be really, really final and unappealable thirty days after the judge signs the final decree. Your “official” divorce date, however, is the actual day the judge signs the Final Decree.

That’s all there is to it.