If you or your spouse file for divorce in Virginia, and you disagree on one or more issues of your divorce, you may have to go through the contested divorce process.
Essentially, this means that a judge will have to decide on the important matters of your divorce, such as the division of property or how much spousal support (also known as alimony) either spouse has to pay.
The Virginia contested divorce process can last anywhere from several months to several years, and can end up costing you a great deal of money.
Before you undergo a lengthy and expensive divorce, it is important for you to fully understand the Virginia contested divorce process.
What Does it Mean for a Divorce to be “Contested”?
In Virginia, a divorce can be either contested or uncontested. The type of divorce you’re going through will affect the laws and guidelines that apply to your case.
An uncontested divorce occurs when you settle all matters pertaining to your divorce prior to filing.
Essentially, this means that you agree with your spouse on both:
- the grounds of your divorce, which we detail below, and;
- the terms of your divorce, such as how you’ll divide your stuff.
The main terms of any divorce include child custody, child support, spousal support, visitation, and property division.
In an uncontested divorce, both you and your spouse will address these issues in a written separation agreement.
However, if you and your spouse disagree on even one of these issues, your divorce automatically becomes contested.
This means that you must appear in front of a judge who will attempt to resolve the matter.
For example, if you disagree with your spouse about child custody, you’ll have to appear in front of a judge who will then resolve that particular custody issue.
Am I Eligible for a Divorce in Virginia?
Before you begin the Virginia contested divorce process, you should make sure you’re eligible for a divorce in the first place.
There are two general requirements you need to meet to file for divorce in Virginia:
- You must have lived in Virginia for at least 6 months.
- You must have a valid reason for your divorce (often called your “grounds of divorce”).
Fault and No-Fault Divorce in Virginia
There are actually two general grounds for divorce in Virginia: fault-based and no-fault.
To file for a no-fault divorce, you and your spouse must have lived separate and apart for at least 12 months prior to your divorce (6 months if you have no children).
In this scenario, the “grounds” for your divorce would be a period of separation (i.e. “we don’t want to be married anymore”).
In a fault-base divorce, you are instead basing your divorce on one of the specific “faults” outlined in the Virginia Code, such as adultery or cruelty.
Therefore, in order to be eligible for a contested divorce in Virginia, you must meet the requirements for either a no-fault or a fault-based divorce.
You can read more about this distinction in our Ultimate Guide to the Virginia Divorce Process.
The 9 General Steps of the Virginia Contested Divorce Process
Once you’re sure that you meet the requirements for getting a divorce in Virginia, you can begin the process of filing.
As stated above, if you and your spouse disagree about one or more issues in your divorce, the divorce automatically becomes contested.
This means that you’ll have to appear in front of a judge who will then resolve the issue.
In most instances, there are nine steps that occur during the Virginia contested divorce process.
However, please keep in mind that the steps we outline below are simply broad generalizations of the specific actions you (or, more accurately, your lawyer) will take in your case.
Contested divorces are complicated matters, and you must hire an attorney to guide you through the process.
The ideas we outline below simply show the general overall shape that most contested divorces follow in Virginia.
Step 1 – File a complaint
The first step in the Virginia contested divorce process is to file a complaint. The complaint must state the grounds for your divorce, as well as a few additional details about your case.
After you file the complaint in your local Circuit Court, you must successfully serve the complaint to your spouse.
Generally, you can complete this step by paying a small fee at the courthouse (of around $12.00) to have the sheriff serve your spouse for you.
Make sure to collect proof that they were properly and legally served.
Step 2 – Your spouse files an answer
After you serve your spouse with the complaint, they have 21 days to file an answer.
When your spouse files an answer to the complaint, he or she has the opportunity to admit or deny the allegations set forth in the complaint.
At this point, your spouse can also file a counterclaim against you. For example, if you are asking for custody of your minor children, your spouse may do so as well.
Step 3 – Pretrial motions are filed
A motion is simply when one party asks the court to do something or make the opposing party do something.
During the pretrial period of the Virginia contested divorce process, either spouse can file motions making various requests.
Common pretrial motions include continuances, motions to compel discovery, and motions for pendente lite relief.
Basically, this is the period where each side starts to gather evidence and prepare their legal strategy.
Step 4 – Attend a pre-trial conference
In some instances, you may have to attend a pretrial conference. The pretrial conference primarily addresses any issues that could be problematic at trial.
The primary purpose of a pretrial conference is to assess the status of a case and set a schedule for litigation.
However, in the event both parties come to an agreement over the contested issue, the pretrial conference could possibly lead to a settlement.
This means that you can resolve the issue before it goes to trial.
Step 5 (Optional) – One spouse requests pendente lite relief
Because the contested divorce process lasts a minimum of several months, Virginia allows the court to temporarily decide on the issues that would normally be addressed in the trial.
A pendente lite order is where the court provides a temporary decision certain issues that require immediate attention.
The court can issue pendente lite orders that provide temporary relief for many issues.
For example, the court could:
- Issue an order that compels one spouse to pay spousal support (“alimony”) to the other until the actual divorce hearing.
- Issue an order that compels one spouse to pay the other spouse’s healthcare costs.
- Create a plan which decides issues pertaining to child custody and child support until the actual divorce hearing.
- Issue an order that provides the exclusive use of the family residence during the suit to one of the spouses.
- Issue an order compelling one of the spouses to continue paying jointly incurred debts (such as house or car payments).
Step 6 – Begin the discovery process
Discovery is one of the most crucial periods of the Virginia contested divorce process.
Discovery is the period of time where both parties engage in fact-finding and uncover evidence in order to prepare for trial.
Because of the extent of the issues involved in a divorce, discovery in divorce cases is often lengthy and expensive.
Judges and attorneys commonly use four discover tools during divorce proceedings:
- Requests for the production of documents
An interrogatory is a written document containing questions that must be answered by the party of interest.
These questions are prepared by an attorney and must be answered truthfully.
Interrogatories are completed under oath and must be returned to the parties attorney within 21 days.
Depositions are oral interviews of parties of interest in the case. Depositions are taken under oath and in the presence of a court reporter.
You may have your own attorney present for depositions.
Subpoenas are court orders requested by you or your spouse that require an individual to appear at the trial to testify.
Finally, requests for production of documents is where the court orders one or more parties to turn over documents to the opposing party.
This is a very broad request that can include everything from emails to bank statements.
In the event that you are told to turn over documents, you will have 21 days to comply.
Step 7 – Expert testimony
During the contested divorce process, it may be beneficial to bring in experts to testify at trial on one of the spouse’s behalf.
Experts can testify about both financial and medical matters. Experts are often used to evaluate any financial assets or property owned by the couple.
For example, you could have someone testify to the fair market value of your house.
Experts can also evaluate the medical and mental status of both parties. Most importantly, experts testify to each spouse’s earning capacity.
While experts can be expensive, the determination of each spouse’s earning capacity is very important when determining alimony and spousal support.
Step 8 – Go to trial
The pivotal event in any contested divorce is the trial. After each party completes their discovery, they will request a trial date.
The court will usually schedule this trial between six and eight months after you make the request.
The trial itself will normally only last one or two days, and will proceed much like a normal civil trial.
Each party will make an opening and closing statement, and bring forth evidence and witnesses who can testify on their account.
Step 9 – Finalize the divorce order
The final stage of the contested divorce process is for the judge to make the decision on the outcome of the case.
After the commencement of the trial, the judge will review the evidence and issue a divorce order.
Essentially, this order is the judge’s final ruling on the case.
Usually, the judge will issue his or her order within a few weeks or months of your trial.
For less complex matters, they may even do so at the trial itself.
If you and your spouse are unable to come to an agreement on one of the major issues of the divorce, then you will likely have to undergo the Virginia contested divorce process.
The Virginia contested divorce process can be a long, tiresome, and expensive process.
For this reason, having an experienced family law attorney by your side is highly recommended.