Understanding the divorce process can feel overwhelming. Whether you are just beginning to consider separation or are already navigating the legal proceedings, this guide will help you understand what to expect at each stage of divorce in Virginia.
Every divorce is unique, but all cases work toward resolving key issues that can affect your future, including
- Child custody arrangements
- Child support and spousal support (sometimes called “alimony”)
- Equitable distribution of assets and liabilities
The path to resolving these issues varies depending on your circumstances, but understanding the process can help you make informed decisions along the way!
The divorce process often begins informally, such as when couples separate and one or both parties start considering divorce. During this time, couples may:
- Agree on temporary arrangements for custody, visitation and support
- Disagree on key issues, requiring legal intervention
- Consult with separate attorneys to understand their options and rights
If you cannot reach agreements on your own, one party may file for divorce in their local Circuit Court if grounds for divorce exist, or attorneys may negotiate on behalf of their clients.
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). Choosing which ground(s) to file under is an important strategic decision that should be made with legal guidance.
Grounds for divorce in Virginia include:
- Adultery: When one spouse engages in sexual intercourse with a person not their spouse. Notably, acts of adultery occurring more than five years prior to the divorce filing cannot be used as grounds for divorce.
- Felony: Grounds for divorce exist if one spouse commits a felony which results in imprisonment of more than one year.
- Cruelty/Desertion or Abandonment: Grounds for divorce exist if a spouse is guilty of cruelty that causes reasonable apprehension of bodily harm, or if a spouse has intentionally deserted or abandoned the other spouse.
Separation (“No fault divorce”): Grounds for divorce exist if the spouses have been living separate and apart without cohabitation for more than one year. This period of time is reduced to 6 months if the spouses have no minor children and have resolved all of the disputed issues in their marriage by written agreement.
In Virginia, a divorce action begins when one party files a Complaint, or formal request for divorce, with the Circuit Court in the county in which the parties last lived together or where the other spouse resides. Here is what you need to know:
The Initial Filing
- The first document is a “Complaint for Divorce” – which is a formal request for a divorce.
- All documents filed with the court are collectively called “pleadings.”
The Response
- The other party responds by filing an Answer, affirming or denying the allegations in the Complaint.
- If the other party believes that there are legal reasons why the divorce cannot proceed, that party may file a “Demurrer.” An example of this circumstance would be one in which a party files for divorce based on a 6-month separation period, but the couple still has minor children.
- Sometimes the party filing the “Answer” also files their own request for a divorce, called a “Counterclaim for Divorce.”
Understanding Your Role
- The party filing first is called the “Plaintiff.”
- The responding party is usually called the “Defendant.”
Important note: Filing first does not generally provide significant strategic or legal advantage in the proceedings.
After filing, certain temporary issues may need immediate attention before your case concludes. These are called Pendente Lite issues and may include:
- Temporary support payments (spousal and/or child)
- Temporary use of property or assets (such as the marital residence, vehicles, etc.)
- Temporary visitation arrangements
These issues can be resolved through negotiation and mutual agreement, or litigation via a Pendente Lite hearing. If a hearing is necessary, the court will enter a Pendente Lite Order that governs these matters until your case reaches final resolution.
Discovery is the formal process of obtaining information from each party involved in the divorce. Every divorce usually requires some level of information-gathering which can happen:
- Informally though the mutual exchange of information between parties; or
- Formally with:
- Interrogatories – written questions that must be answered under oath
- Requests for production of documents
- Depositions – oral testimony taken before trial
- Requests for admissions
- Other specialized discovery techniques
The discovery process is designed to ensure that both parties have access to the information needed to make informed decisions and present their case effectively.
Once the discovery process is underway, the attorneys for each party will set dates for a trial on the issues of custody, property distribution and support. Some courts choose the date when the attorneys may set a trial date; others permit the attorneys to have more flexibility in scheduling trial dates. 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 10 to 18 months. However, this timeframe may be shorter or longer depending on the complexity of the case, available court dates/resources and specific circumstances requiring expedited or extended proceedings.
Reaching an Agreement
At any point in the litigation, the parties may agree on some or all of the issues noted above. If the parties do agree, they can enter:
- A Marital Settlement Agreement (a private contract between the parties); or
- A Consent Order
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.
Going to Trial:
If you cannot resolve your issues through agreement, the court will make determinations at trial. During trial, both parties present evidence, call witnesses, and make arguments before a judge. The process can be emotionally challenging and very often more expensive than reaching a settlement, both in terms of attorney fees and time invested. Importantly, when you go to trial, you relinquish control over the outcome—the judge makes the final decisions based on the evidence presented and applicable law. While settlements allow you to negotiate terms that work for your family’s unique situation, trial outcomes are bound by legal standards and precedent, which may not align with what you feel is fair or ideal.
Important Reality Check
No attorney, regardless of skill level, can definitively predict trial outcomes. When clients ask, “What are my chances?”, the most honest answer includes:
- A range of possible outcomes rather than certainties
- Acknowledgment that results depend on variables beyond your control
- Recognition that individual judges may view cases differently
A skilled attorney will provide realistic expectations while preparing your strongest possible case.
Decisions from Circuit Court divorce trials may be appealed to the Virginia Court of Appeals, although important limitations apply. You do not get a new trial or the opportunity to present your case all over again. Instead, the Court of Appeals reviews the legal record from the Circuit Court trial to determine whether the judge made errors in applying the law. In most cases, only specific issues or rulings may be appealed rather than asking the appellate court to reconsider all aspects of your case. 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 on how to correct the legal errors identified.
Life doesn’t stand still after your divorce is finalized. As circumstances change, court orders and agreements that once made sense may need adjustment – but not all terms can be modified. Issues related to child custody and support can be revisited when circumstances warrant, but property division is permanent once the divorce is final.
Common reasons for modifying custody or support include significant changes in income, job loss or career advancement, relocation, changes in a child’s needs, or shifts in health status. When these changes occur, either party can petition the court to modify custody or support obligations.
Unfortunately, not all former spouses fulfill their court-ordered obligations. When a party fails to pay support, violates custody arrangements, or ignores other binding orders, legal action may be necessary. Courts take enforcement seriously and have various tools available to compel compliance, including wage garnishment, contempt proceedings, and other remedies. If you’re facing non-compliance from your former spouse, enforcement actions can protect your rights and ensure court orders are honored.
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