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How to File an Uncontested Divorce in Virginia

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How to File an Uncontested Divorce in Virginia

Understanding Uncontested vs. Contested Divorces

Before getting into the step-by-step process of filing an uncontested divorce in Virginia, it’s important to understand the difference between uncontested and contested divorces.

An uncontested divorce is one where both spouses agree on all issues related to the divorce, including child custody, visitation, child support, spousal support, and division of property and debts. If there are any disagreements on these issues, the divorce becomes contested.

In a contested divorce, the judge must make rulings on disputed issues after a trial or hearing. This process typically takes much longer—often many months—and costs substantially more in legal fees on both sides as the case is fully litigated.

An uncontested divorce seeks to avoid this costly and drawn-out process by having both parties voluntarily agree to resolve all divorce-related issues beforehand without needing the court to intervene.

Grounds for Divorce in Virginia

Before proceeding with an uncontested divorce in Virginia, it’s important to establish that there are valid legal grounds for divorce recognized by the state.

Virginia is considered a “no-fault” divorce state, which means it is not necessary to prove the other spouse at fault or responsible for the marriage ending. The only requirement is to prove the marriage is “irretrievably broken.”

The two grounds for divorce recognized in Virginia are:

  • Separation of more than one year – The spouses have lived separately for at least one year, with or without a valid separation agreement.
  • Mutual consent – Both spouses consent or agree to the divorce, even if they have not been separated for a year yet.

So in summary, the key factor is establishing the marriage is irreparably broken either through at least one year of separation or mutual consent, not assigning fault to one spouse over the other.

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Preparing for an Uncontested Divorce

A few key preparation steps will help ensure a smooth, uncontested divorce process in Virginia:

Agree on All Issues: The spouses must come to a full agreement on all divorce terms like child/spousal support, custody, visitation, property division, debts, etc. Disagreement on any one issue risks making it a contested case.

Draft a Settlement Agreement: Having all agreements in writing in a legally binding settlement agreement is highly recommended. This serves as evidence of agreements in court.

Collect Necessary Documents: Gather things like marriage license, separation date documentation if applicable, proof of residency in Virginia, child(ren)’s birth certificates, last tax return, asset/debt statements.

Determine Filing Method: Choose between self-filing pro se or hiring a lawyer. Self-filing requires a clear understanding of forms and procedures.

Establish Residency in Virginia: At least one spouse must have lived in Virginia for at least 6 months before filing.

Filing an Uncontested Divorce in Virginia

With preparations complete, here are the basic steps to file an uncontested divorce in Virginia:

1. Select the County or City

Divorce cases are filed in the circuit court of the county or city where at least one spouse has lived for at least 6 months before filing. If both spouses live in different locations, either jurisdiction is acceptable.

2. Complete Required Forms

Print and complete all necessary forms from the VA courts website. Common forms include the complaint, property settlement agreement, and verification of residency.

3. File Paperwork and Pay Filing Fee

File the original forms in the circuit court clerk’s office of the chosen jurisdiction along with the required filing fee, usually around $50-75 depending on county. Make copies for your records.

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4. Serve Defendant Spouse

Arrange for the other spouse to be officially “served” with divorce papers, either by sheriff or private process server. This notifies them of pending legal action.

5. Wait Required Time Period

State law requires a 60-day waiting period after service before a final decree can be issued. This allows for possible reconciliation attempts.

6. Attend Final Hearing

After 60+ days, go before the judge for the uncontested final hearing. Bring valid ID, signed settlement documents, and be ready to testify on details.

7. Receive Final Decree

The judge will grant final divorce decree dissolving marriage if all appears in order. Make certified copies for records. Marriage is now legally terminated.

Additional Considerations

There are a few other factors couples should consider regarding the uncontested divorce process in Virginia:

Use a Lawyer: While self-filing is allowed, using an experienced family law attorney is recommended for expert guidance and paperwork precision. Mistakes can potentially make it contested.

Custody Decisions: Virginia law favor joint legal custody in most cases unless deemed not in the best interests of the child(ren). Specific parenting plans must outline physical custody.

Splitting Retirement Accounts: State law generally requires any retirement funds accumulated during marriage to be divided equally unless a valid waiver was signed by both parties.

Name Change: Choose whether to legally change name back to maiden name after divorce is granted. That request can be included in original filing paperwork.

Post-Divorce Obligations: Final property settlements and support orders will continue to be enforceable even after divorce is finalized if terms are not met.

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Frequently Asked Questions

Can we file jointly?

Yes, Virginia allows joint petitioner divorce filings when both spouses fully agree to all terms without disputes. This speeds processing time typically.

What if we have minor children?

For uncontested divorces involving minor children under 18, additional requirements apply like creating detailed joint custody and visitation plans approved by the court.

Are there residency exceptions?

Yes—the 6-month residency rule can be waived in cases of adultery or felony convictions of one spouse for specified crimes like assault.

Can the process be contested later?

If one spouse has second thoughts after filing and signs settlement documents under coercion or without understanding terms fully, they may file to set aside divorce within 21 days of final decree date. After that window, modifications require proving substantial changes.

What about name changes after?

Divorced individuals can request a legal name change back to their maiden or other surname as part of original divorce paperwork in Virginia without a separate filing. The change is granted automatically.

Conclusion

With preparation and diligence following all state requirements and procedures, an uncontested divorce in Virginia need not be an overly complex or drawn-out process when both parties are genuinely cooperating in reaching mutually agreeable terms.

While using experienced legal counsel is usually prudent, couples motivated to resolve matters privately without litigation have a defined path outlined by Virginia law to dissolve their marriage efficiently and amicably. Understanding the steps involved is key to ensuring nothing is missed.

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