If you are contemplating a divorce, you probably have a lot of questions. Below are five questions we hear often:
1) How quickly can I get a divorce?
This is one of the most common questions received by family law attorneys—and one of the most difficult to answer accurately.
The timing of a divorce depends on many factors, including whether the parties have an agreement, the cooperation and participation of both spouses (and/or their attorneys,) and the availability of the court.
The basic steps of an uncontested divorce require approximately 4-6 weeks to complete, but many circumstances can create delay. Some common reasons for delay include:
- Inability to locate the other party
- Delayed response from the other party or their attorney, and
- Busy courts unable to process cases quickly
If your divorce is contested, it may take a year or more complete. Why? You may not have grounds for divorce for 6-12 months, discovering the financial details or other evidence may take a significant amount of time, or you may not get a trial date for several months, depending on the court’s availability.
2) What is the difference between an uncontested and a contested divorce?
- An uncontested divorce means that you and your spouse have resolved all of the issues arising from your marriage, including grounds for divorce, division of property and debts, support, and custody. You will need to have a written and signed settlement agreement to file with the divorce pleadings resolving all of the issues arising from your marriage, such as property and debt division, support, and custody.
- A contested divorce means that there is at least one issue on which you and your spouse do not agree. This will require a judge to make a decision for you, unless you are able to reach agreement before the final trial date.
3) What are “grounds for divorce?”
To file for divorce in Virginia, you must have “grounds for divorce.” Grounds can be either “no fault” or fault based.
- A “no fault” divorce is based on having lived separate and apart for the legally required period of time. If you have minor children (under the age of 18), you must have lived apart for at least 12 consecutive months in order to file for a “no fault” divorce.
- If you do not have minor children, and you have a written agreement resolving all of the issues arising from our marriage, you may be eligible to file after living separately for 6 consecutive months. This is what people often call “irreconcilable differences.”
A fault-based divorce is based on bad conduct by one party. Fault grounds are limited to the following:
- Adultery, sodomy, or buggery
- Desertion/Abandonment, or
- Incarceration for a felony for more than a year
4) What are the steps in an uncontested, no fault divorce?
After you have been separated for the required amount of time and you have a written agreement resolving all of the issues arising from your marriage, there are still several steps to follow before a divorce is finalized:
- You will need to file a complaint, which lays out the important dates and facts (date of marriage, date of separation, etc.);
- The court will process the complaint and assign a case number, then return a summons;
- The other party will be served with the complaint and summons, or they can sign and notarize a waiver accepting service;
- Depending on the step above, other party’s response will be filed and you can move forward immediately, or the service affidavit will be filed with the court and the other party will have up to 21 days to file an answer to the complaint;
- When the waiver has been signed, or the 21 days have passed since service of the complaint, you and a third party witness (other than your spouse) will complete affidavits attesting to the facts laid out in the complaint; and then
- A final decree (the order that finalizes the divorce) will be drafted and signed by the parties or attorneys, then filed with the court.
Keep in mind that each case is unique and there may be additional steps, depending on your circumstances, including what assets you have to divide.
5) Can I have my marriage annulled?
Legal annulments are very rare. Under Virginia law, there are only a few very specific circumstances that allow a court to annul a marriage:
- When a marriage was induced by fraud or duress;
- When one party lacked the mental capacity to consent at the time of marriage;
- When one party was under the age of 18 and not emancipated;
- When one party has “incurable impotency” at the time of the marriage;
- When one party was convicted of a felony prior to the marriage, without the knowledge of the other spouse;
- When the wife was pregnant with a child by some person other than the husband at the time of the marriage;
- When the husband, without knowledge of the wife, fathered a child outside the marriage within 10 months of the marriage date; or
- When, prior to the marriage, either party had been a prostitute without the knowledge of the other spouse.
Do you still have questions? Contact us to request a consultation with one of our experienced family law attorneys.