Divorce in Virginia: No-fault, Uncontested, Divorce in Virginia

NO-FAULT & UNCONTESTED
DIVORCE PROCEDURES IN
VIRGINIA

Most of the information contained in the other family law pages on this site deal with the more complex aspects of the divorce process. For couples who have already settled everything between them and who simply want to terminate their marital bonds, the depth of that other information is just too much. Many visitors to the site have asked for just a brief synopsis of the process that is followed for a "simple" no-fault and uncontested divorce. We are pleased to oblige such a reasonable request.
So, in a nutshell, here is how we accomplish for our clients a no-fault, uncontested divorce. (But please read the caveat below.)

CAVEAT: Just because you and your spouse have agreed to a divorce, that alone does not mean that you meet the criteria for an 'uncontested divorce' as we we use that term on this page. An "uncontested" divorce does require that the parties agree to be divorced (or at least not to interfere with the other's request for the divorce). But it also requires that the parties have resolved all custody, visitation, marital property and support issues (or at least both parties must agree not to litigate them in the divorce court). Typically these issues are settled well ahead of any divorce filing in the form of a written Property Settlement Agreement (a/k/a "PSA" or "Separation Agreement"). There are additional technical requirements that must be followed before the divorce can be made final, but a pre-existing Property Settlement Agreement is the essence of an uncontested divorce (see Property Settlement Agreement page elsewhere on this site).

Some people have been married such a short period of time that they have accumulated no property together, they have no children and do not intend to ask for support. In such cases, the divorce likely can safely proceed without a PSA. In all other cases, we strongly encourage a Property Settlement Agreement.

Bill of Complaint: This is the document your attorney will draft following your initial visit to the office. It contains the essential factual allegations and legal elements which, when proven, would demonstrate to the court that you are eligible for a divorce. The elements contained in the typical "no-fault" Bill of Complaint are:

a. the fact that your were married, where and when;

b. jurisdictional and venue language (why the case is brought in Virginia, and why in the particular city or county);

c. the age, mental competency and military status of both the husband and wife;

d. the existence of any children;

e. the date of the parties separation

f. a statement that the separation was begun with the requisite intent to remain permanently apart, or if the separation was not begun with that intent to divorce, when that intent formed.

The Bill of Complaint concludes with a request that the court grant the plaintiff (the person filing for the divorce) a divorce from the defendant.

About a week after you have retained the attorney, you will be asked to return to the office to review the Bill of Complaint for accuracy (to check for correct spellings of names, dates, etc.) and to sign it. Please do read the document carefully. While we rarely make such mistakes, one is possible, especially in spelling of names.

Filing: The signed Bill of Complaint is mailed (or hand carried, for faster action--talk with your attorney about this option) to the Clerk of the appropriate Circuit Court. When marked "received" by the Clerk, your case is considered "filed."

Service of Process: After the case is filed, the Clerk will send a copy of the Bill of Complaint, along with a cover sheet called "Subpoena in Chancery," to the sheriff of the jurisdiction where your spouse resides. It is the sheriff's job to serve the Bill of Complaint and the Suppoena in Chancery on your spouse. The Subpoena in Chancery advises your spouse that a divorce action has been filed and if he or she wishes to oppose it, he or she has 21 days to file a response. Otherwise, a "default" can be entered. (Actually, in Virginia, a divorce can never be granted "by default." Evidence proving an entitlement to a divorce must always be presented. But if your spouse does not respond to the paperwork within 21 days, you can at least proceed to the deposition phase of the process without waiting any longer.)

Oftentimes, the spouse doesn't want the sheriff coming by his house or work site, and is willing to sign a "Waiver." In the typical waiver, your spouse waives the requirement of actual sheriff service, waives the 21 day 'response' period, waives the requirements of other notices that might be required (so long as there is not a request for money, property, custody or visitation which is different from the provisions of any Separation Agreement), and states that he or she also wishes the divorce to be granted as soon as possible. Even with a waiver, you (the plaintiff) must still prove the facts alleged in the Bill of Complaint. See Depositions, below.

Depositions: In an uncontested divorce case, you will not need to appear in court to testify. You need only to come to your attorney's office at the pre-set time to give a deposition (testimony under oath that is give to the judge in written form). You must bring one witness with you who can verify the essential aspects of your case. Note: the witness must be able to testify to all of the matters set out in your Bill of Complaint, so make sure you read that document and begin thinking about who your witness will be a bit ahead of time. The witness should be somebody who knows you well (and has know you for a reasonably long period of time). Hopefully the witness will also know your spouse. A relative of you or your spouse is fine, and sometimes preferable, since a relative generallly knows the living arrangements of the parties fairly well.

In certain jurisdictions, most notably Hampton and all of the Southside Hampton Roads cities, the deposition is taken in front of a quasi-judge person called a 'Commissioner in Chancery.' The Commissioner listens to your testimony and that of your witness, and recommends to the judge whether you have proven your divorce grounds. It's a bit more expensive, but you really have no choice in the matter.

The testimony taken at the depositions is typed up and sent to the judge in this written form.

Final Decree: Once the the testimony has been taken at the depositions, it is submitted to a judge for his or her review. The judge will read the entire file and determine for him/herself that the substantive and technical requirements of granting the divorce have been met. If they have, the judge will declare that the parties are divorced by signing a document called a final decree. If a separation agreement has been submitted by the parties for approval by the judge, the judge will typically make the separation agreement a part of the final decree.

The timing for the return of the final decree to our office is about 2 to 3 weeks after the taking of the deposition (longer when the depositions have been taken in front of a commissioner). Once the final decree is signed by the judge, you are divorced. Your divorce will be really, really final and unappealable thirty days after the judge signs the final decree. Your "official" divorce date, however, is the actual day the judge signs the Final Decree.

That's all there is to it.

Back to HomePage Back to Divorce in Virginia pamphlet Fees for Uncontested Divorces

prepared by:
Lasris & Vannan, P.C.
Tel: 877-2244 or 642-5050

Page last updated: 11/25/03

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Denbigh Law Center: Lawyers serving the cities of Newport News, Hampton, Williamsburg and Poquoson, and the Counties of York, James City, Gloucester, Middlesex and Matthews (including the townships of Grafton, Hayes, White Marsh, Saluda, Tabb, Urbanna and Yorktown), in the subject areas of Adoption, Bankruptcy (Chapter 7 and 13), Divorce, Estate Planning, Separation Agreements, Wills and Trusts. Please call us for more information at (757) 877-2244 or contact us via e-mail by clicking here.