Filing for an uncontested divorce is actually surprisingly simple. In fact, the process itself can be as easy as submitting some paperwork at your local courthouse.
In this article, we’ll explore 5 general tips you should know for filing for an uncontested divorce in Virginia.
If you’re instead interested in filing a contested divorce, you should check out our other article: 5 Tips for Filing a Contested Divorce in Virginia.
Uncontested Divorce in Virginia: The Basics
An uncontested divorce occurs when you and your spouse mutually agree to end your marriage, and there are no disputes over how you plan to do so.
In order to file for an uncontested divorce, both you and your spouse have to agree on the key elements of your divorce, such as child custody, visitation, spousal support, and property division.
Further, you’ll need to base your divorce on a particular point of contention.
This point will be the “grounds” for your divorce, or the legal reason you are filing for divorce in the first place.
Generally speaking, if you are filing for an uncontested divorce you will base your divorce on grounds of separation. This is commonly referred to as a “no-fault” divorce.
In a no-fault divorce, you must separate from your spouse for either 6 months (if you have no children) or 12 months (if you have children).
During this period, you will live apart and generally continue your lives as if you were divorced.
Then, at the end of this period, you’ll submit your divorce paperwork with your local Circuit court.
If, on the other hand, you choose to file for a fault-based divorce (such as if your spouse committed adultery or abused you), there is a high chance that your divorce will instead become contested.
This is because your spouse is likely to fight the accusation in court.
In this way, the “grounds” for your divorce will normally be the length of separation, and not any particular fault.
This is because there is a lower chance of people fighting over the date of separation than whether or not one spouse cheated.
However, even if you file for a no-fault divorce and agree on the date of separation, you may still find your divorce is contested if you and your spouse disagree on any other element of the divorce.
5 Tips to a Successful Uncontested Divorce in Virginia
If you choose to pursue an uncontested divorce, you can save a great deal of time and money by preparing ahead of time for certain divorce proceedings.
As noted above, you have to meet certain requirements when filing for an uncontested divorce in Virginia.
By following these 5 tips, you’ll be setting yourself up for a successful, cheap, and easy divorce process in the future.
Tip 1: Meet all the Eligibility Requirements for an Uncontested Divorce
First, you should make sure that you meet, and exceed, all of the statutory eligibility requirements.
Specifically, in order to file an uncontested divorce you must:
- Show that the Commonwealth has jurisdiction over your case. Essentially, this means proving either you or your spouse has lived in Virginia for the past 6 months.
- Meet the requirements for filing either a “no-fault” or “fault-based” divorce, as described above (these are the “grounds” for your divorce).
- Agree with your spouse on all issues regarding your divorce.
For this reason, you should take the time to collect any evidence you may have which would support each of these claims.
As simply one example, in order for Virginia to have jurisdiction over your divorce, either you or your spouse must have lived in Virginia for at least six months.
In this way, you may want to show records of rent or housing payments to the court in order to establish that you meet the residency requirement.
Tip 2: Establish a Separate “Household” from Your Spouse
It is highly recommended that you establish a separate household from your spouse as soon as you decide to get a divorce.
As specifically noted in the Virginia Code:
“A divorce from the bond of matrimony [on no-fault grounds] may be decreed…on the application of either party if and when the husband and wife have lived separate and apart without any cohabitation and without interruption for one year [or six months if there are no children].”Virginia Code § 20-91(9)(a)
Essentially, this section means that you and your spouse must live independently for either six months or one year in order to prove to the court that you are fully separated.
It doesn’t mean that you can’t communicate, especially over key things like child care and finances.
It does mean that you should establish separate bank accounts, separate addresses, and separate lives in general.
Further, there can be no breaks in this process.
Any instances of cohabitation (sleeping with your spouse or otherwise treating them as a romantic partner) could reset your separation waiting period.
This is true even if you’re filing for an uncontested fault-based divorce, as sharing a household with the person who is “at-fault” for your divorce will only harm your case.
Often, couples who are planning to separate think they may be able to continue living in the same home, as long as they no longer share bedrooms.
While it is possible to establish separation while you and your spouse are still living together, this is tricky and you should speak with an attorney to avoid having to reset the clock.
Tip 3: Draft a Preliminary Separation Agreement
As noted in the same Virginia Code section as the one cited above:
“A divorce from the bond of matrimony [on no-fault grounds] may be decreed…[after] the parties have entered into a separation agreement.“Virginia Code § 20-91(9)(a)
Essentially, this means that, in order to file for an uncontested divorce based on a separation of less than one year, you need to draft a separation agreement which outlines the basic elements of your divorce.
Also sometimes called a “property settlement agreement,” a separation agreement is a contract which addresses the many legal issues that accompany a divorce.
For example, all separation agreements divide property and assets between the divorcing spouses.
If there are children in the picture, your separation agreement will also settle issues of custody and visitation.
It’s important to note that while you can address child support in a property settlement agreement, you cannot totally waive the right to child support this way.
The right of support is a duty owed from one parent to the child, so the parents cannot independently contract out of that.
However, Virginia public policy still encourages spouses to collaborate and come to an agreement regarding the support and maintenance of children in the event of a divorce.
It’s generally recommended that you sit down with your spouse at some point to plan out the terms of a preliminary separation agreement.
In this conversation, you should general decide on how you can equitably (“fairly”) divide your assets and obligations.
After you’ve written down the basics, you should take your list of decisions to an attorney so they can look over your work and help you draft your final separation agreement.
While it’s certainly possible to do this step yourself, an attorney can help make sure there are no mistakes that might cause the court to reject your agreement.
Tip 4: Discuss the Practical Elements of your Divorce
In addition to the formal elements of your divorce which you should settle in a separation agreement, you should also take some time to settle the practical elements of your separation.
For example, you should sit down with your spouse and have an adult conversation about how your relationship will change after you finalize your divorce.
Will you remain friends? Are you going to continue sharing a Netflix subscription? Can you make a promise to stay on good terms with your spouse in front of your children?
It’s smart to establish a baseline so that you can be ready when problems appear in the future.
Purely from a practical perspective, separating your lives will be a complex business.
You should take some time to discuss how you can do so effectively.
Tip 5: Prepare for Future Bureaucratic Issues
While this may be stating the obvious, you aren’t only getting divorced in practical terms, but in legal terms as well.
This means that you may have to deal with various bureaucratic consequences of your divorce proceedings.
As simply one example, multiple elements of your divorce can have an impact on how you file your taxes the following year.
Alimony payments, head of household requirements, changes in taxable property (i.e. losing your share of a house), and the number of dependents you can claim (such as if you’re losing primary custody) can all have a significant impact on how you file your taxes.
For this reason, you’ll want to sit down with an experienced accountant or attorney to talk over the various collateral consequences you should expect out of your divorce.
In doing so, you can avoid any unexpected surprises down the road.
Filing for an uncontested divorce in Virginia is relatively easy.
Basically, all you have to do is meet a few simple requirements, then file your documents with your local Circuit Court.
However, it’s recommended that you have an attorney look over your documents before you file.
Circuit courts have somewhat strict requirements of the documents needed to petition for divorce.
Making mistakes or failing to include the correct documents can result in a rejection of your petition or final decree, or in your case “stalling out” and not moving forward.
Most attorneys will begin by asking whether or not you’ve completed the required steps listed in the sections above, so following these 5 tips can help make your divorce process both quick and easy.