Laying the Groundwork for Divorce in Virginia
Are you considering getting a divorce in Virginia? The process is governed by Virginia law, particularly Title 20 of the Virginia Code. There are many requirements and details that can trip you up, which is why we always recommend consulting with a family law attorney to get clarity on your status and options. Here are some questions you should be able to answer in order to meet the threshold for obtaining a divorce.
Where do you live?
One of the parties must be a “resident and domiciliary” of Virginia for at least six months in order to be able to file for a divorce in the Virginia courts. In the Northern Virginia area, there are many people with tricky circumstances, including recent arrivals, members of the armed forces, non-US citizens, employees with jobs that require moving to another country for a period of time, and people who relocate to nearby Washington, DC, or Maryland. It is important to understand and meet this threshold, otherwise Virginia may not have jurisdiction to process the divorce.
Is there more than one kind of divorce?
In this day and age, most people have heard of “no-fault” divorce. This is the most typical form of divorce sought by parties in Virginia. There are other grounds for divorce, particularly fault grounds like adultery, which are still available under the law. When a marriage is coming to an end, sometimes parties consider filing under fault grounds, and depending on the circumstances, it may make sense to do so. Understanding the differences between fault and no-fault divorce is important, especially the timelines that come with each process.
Do you have the capacity to divorce?
Under Virginia law, a party must be over 18 years of age and of sound mind in order to obtain a divorce. If a party is lacking capacity, then other individuals may need to be involved, such as a conservator, in order to move forward.
Are you truly separated?
A no-fault divorce requires a period of separation of six months or a year depending on the circumstances. If there are minor children, then the separation must be at least one year. If there are no minor children and there is an agreement resolving all issues, then only six months are needed. Separation needs to be continuous and with the intention for the marriage to end permanently. Parties must prove that they have been separated for the statutory amount of time, and a reconciliation effort can start the clock over again. While finances may make moving out impracticable, separation can be proven by couples who still live in the same house, but it takes some additional proof.
Do you have to go through the court?
While we strongly recommend that parties consider alternative dispute resolution for their divorce, in order for it to be legal, an action must be filed with a Virginia Circuit Court. In cases where the parties are able to resolve all the issues through Collaborative Law, mediation, or negotiation, the court may only need to approve a settlement agreement, but that approval is a necessary step that shouldn’t be overlooked.
Getting a divorce takes effort. Having all the necessary prerequisites lined up before filing an action prevents the time and potential expense of having to refile or correct other mistakes that often trip up individuals who are not familiar with the legal system. If you are considering a divorce in Virginia, contact us for a consultation to make sure you aren’t overlooking a necessary element.