The Divorce Process
Fairfax Divorce Lawyers
Each divorce is unique. However, in all divorces the goal is to end the marriage and resolve one or more of the following issues: child support and spousal support, child custody and visitation, and equitable distribution of property.
Starting the Process: A divorce case starts informally when a couple agrees to explore divorce and separates. They may agree on certain issues such as custody and support arrangements on a temporary basis, or they may disagree, in which case one party may file in their local circuit court for a divorce, or have their attorney negotiate a compromise on such issues.
Litigation: In Virginia, a divorce action begins when one party files a Complaint, or formal request for divorce, with the circuit court in their county. Documents filed with the court are collectively called “pleadings.” The other party may respond by filing an answer to that Complaint, specifically affirming or denying each statement or “allegation.” Sometimes, the responding party may file his or her own request for divorce in a pleading called a Counterclaim. The party filing the first pleading is called the Plaintiff or Petitioner, and the responding party is called the Defendant or Respondent. Generally, being the first party to file confers no significant tactical or legal advantage.
Grounds for Divorce: A party may file for a divorce based on fault grounds (such as adultery or desertion) or no-fault grounds (meaning a divorce granted merely because a couple has separated for the requisite amount of time). The decision to file on fault or no-fault grounds is complex. For a further discussion of fault grounds, please see our FAQs.
Resolving Interim Issues: Once the case is filed, certain temporary issues such as custody or support may be litigated or negotiated. Other times, the parties may agree on such matters and may not require the court’s assistance in resolving those issues pending trial. The Court refers to temporary issues as Pendente Lite issues. If temporary issues are litigated, the parties will schedule a Pendente Lite hearing. At the conclusion of this hearing, the Court will enter a Pendente Lite Order which governs matters until a final resolution of the case.
The Discovery Process: Every divorce involves information-gathering, which can be accomplished informally by a mutual exchange of financial information, or more formally by interrogatories (written questions that a party must answer under oath), requests for production of documents, depositions, requests for admissions, and other discovery techniques. “Discovery” refers to the formal process of obtaining information from each litigant.
Litigation Procedure and Timeframe: Once the discovery process is underway or complete, the attorneys for each party will set dates for a trial on the issues of support, custody, and property distribution. Some courts choose the date when the attorneys may set a trial date, other permit the attorneys to have more flexibility in scheduling a trial date. Some localities decide these issues at one trial, others require separate trials for custody and financial issues.
The typical time frame between the initial filing for divorce and trial on the issues is approximately 12 to 18 months. However, the court may extend or shorten the time period depending on the exigencies of each case and the resources of the particular court.
Settlement and/or Trial: At any point in the litigation, the parties may agree on some or all of the issues noted above. If they do agree, they enter a “Marital Settlement Agreement” (a private contract between the parties) or a consent court order that resolves the issue. If a couple is able to resolve their matter by means of an agreement or consent order, obtaining the divorce is normally a straightforward administrative process. If the couple cannot resolve their issues, the court will do so at trial.
It is important to remember that no lawyer, no matter how skilled, can advise you definitively as to the outcome at trial. Many clients want their lawyers to venture a guess as to the likely outcome: what are my chances? A good lawyer will provide you with a range of outcomes and candidly admit that the outcome is dependent on variables over which you have little or no control, such as the individual judge.
Appeal: Decisions from the Juvenile and Domestic Relations Court (such as custody and support issues involving unmarried parties) may be appealed to the Circuit Court. In these instances, the parties have a new trial on all issues raised in the Juvenile Court proceeding. After the Circuit Court trial, the judge may remand the case back to the Juvenile Court for future modification or enforcement proceedings. Alternatively, the judge may rule that the Circuit Court should retain control of these proceedings.
Decisions from the Circuit Court (such as divorce trials) may be appealed to the Virginia Court of Appeals. In most cases, only specific issues or rulings may be appealed to the Court of Appeals. If a party wins the appeal, the case is normally returned to the trial court judge rendering the initial decision with instructions from the Court of Appeals regarding a rehearing on these particular issues or rulings.
Modification: After your divorce is complete, certain court decisions or agreements between the parties may require modifications based upon a change in circumstances. For example, a party may significantly increase his or her income rendering the former support award unfair or outdated. The other party may therefore seek to have the award changed based upon such circumstances. Generally speaking, issues related to child custody or support may be modified in the best interests of a child regardless of whether the court or the parties resolved such issues.
Enforcement: Unfortunately, some clients deal with former spouses or parents who fail to fulfill their agreed-upon or court-ordered obligations. In such situations, it may be necessary to bring a court action for enforcement of court orders or agreements.