In Virginia, the grounds for a no-fault divorce or an uncontested divorce are called "living separate and apart." In order to satisfy the necessary elements to obtain a no-fault divorce, the parties must have lived separate and apart without cohabitation or interruption for a period of 12 months or more. If the husband and wife have no minor children born of or adopted by the marriage and have a signed separation agreement, a no-fault divorce may be obtained after a separation period of 6 months.

Before marriage the future husband and wife can determine the rights and obligations of either party concerning any property; spousal support; life insurance benefits; wills; what happens to the property upon divorce; and any other right or obligation that does not violate public policy. 

Child support is NOT an issue that can be decided in a premarital agreement.

Premarital agreements are best signed well in advance of the wedding and each party should have effective, legal representation before signing.

• division of property


• child/spousal support


• child custody/visitation


• division of pension/retirment plans


• tax planning


• insurance coverage

 How do I know if I qualify for your Uncontested Divorce service?

You and your spouse can qualify for an uncontested divorce if the following requirements are met:

a)      you or your spouse has been a resident of the State of Virginia for at least the last 6 months before we'll file;

b)      you and your spouse agree to a divorce (keep reading if one spouse does not agree); and

c)      you have been separated for at least twelve months, or six months if you have an agreement and no minor children.

           Call or e-mail our firm to get started.  We will begin by discussing your situation and making sure that an uncontested divorce is the best way to proceed. We will then have you fill out one of our data sheets and have you sign an engagement agreement.  Once those are received along with our fee, we can proceed very rapidly.  If using e-mail and paying online, you may never have to come in until depositions are scheduled.

 What if I don't know where my spouse lives?

             If you have lost touch with your spouse and cannot find them, all is not lost.  If you have some identifying information (such as a social security number) we are often able to find them using our special software.  If the spouse is still not found, a divorce can be obtained by filing an order of publication and having a notice published in the newspaper.  There is an additional attorneys' fee of $100.00 for this service and you will also have to advance the cost of the newspaper fee prior to it being filed.  Currently, the cheapest Richmond-based newspaper publication is around $150.00.

 Will I need to go to Court?

              If you qualify for this service, no court hearings would be necessary.

 Will I need a witness to get divorced?

            Yes, Virginia law requires that grounds for divorce be corroborated by a third party who is not your spouse.  This is done during depositions held in my office (if Richmond based) or at a court reporter's office convenient to your location.  I generally suggest that they bring an adult family member or friend along who knows the both of them to corroborate that they have been separated for a certain time period.

 Do I need a property settlement agreement?

          The short answer is:  it depends.  Property Settlement Agreements are always a good idea for everyone's protection, even if there are few assets and a short duration marriage.  However, they are not a requirement for divorce unless you have no minor children and are filing for divorce after being separated for six months or more.  If you have minor children or have been separated for 12 months or more, there is no legal requirement for a property settlement agreement under Virginia law.

 How do I get my name changed?

            Our attorneys will submit an Order for Name Change along with your Court papers so that when the Judge signs the Final Decree for Divorce, your name can be changed as well.  There is an additional fee of $100.00 for our attorneys to perform this service. 

 Do I need to bring my marriage certificate?

           Contrary to popular belief, no one needs to see your marriage certificate in order to get divorced.

 How long do I need to be separated?

           If you have children, you must have been separated with the intent of remaining separated for twelve months or more.  If you have no minor children, you have to be separated for six months or more if you have a signed property settlement agreement.

 How long will it take to be divorced?

            Our process will not take very long at all.  If the spouse is cooperative and returns the necessary paperwork in a timely fashion the whole process from start to finish can take as little as 3 weeks.  I will add however, that once the paperwork is sent to the Court for entry, we are at the mercy of the Court's schedule and while they are often fast and efficient, they do experience times of backlog.

Will my spouse need to come to your office?

            Not usually.  If your spouse is agreeable to sign the waiver of service and notice of process, there is no need for them to appear.  Through mail and e-mail, most communications can take place as least intrusively as possible.          

 Do you take credit cards?

            We are able to process all major credit cards.

 Do you take payment plans?

            Given our low fees and our ability to accept credit cards we try to discourage payment plans.  However, in some circumstances we will allow you to pay sixty percent of your fee upfront, and forty percent at the conclusion of your matter with the understanding that the divorce will not be finalized until we have been paid in full. 

    One of the highest hurdles to clear in seeking an uncontested divorce is the fact that the parties are required to live separate and apart, continuously and without interruption for six (no children, with property settlement agreement) to twelve months before they can file for divorce.  While many potential ex-spouses would love to move out as soon as possible, sometimes the economic reality is that neither party can afford to move out on their own and there are no close family or friends where they can set up camp for a few months.  In recent years, the Virginia Supreme Court, has thankfully addressed this problem and has approved some divorces on the grounds of living separate and apart while the parties still lived under the same roof. 

In Virginia, a divorce may be granted on four grounds:

            1.  Adultery

            2.  Conviction of a felony

            3.  Cruelty or desertion

            4.  Living Separate and apart

Of the 4 grounds, the first three are considered “fault” grounds, whereby those that file for a no-fault divorce state the fourth ground. 

            Adultery

            A divorce may be granted if one of the parties is found to have committed adultery.  The adulterous act must be proved by clear and convincing means, which can often be difficult to prove.  It is important for the person who has filed divorce and is alleging adultery against the other person to remember that they are still married until the divorce is final.  Post-separation adultery is still adultery, even though the parties have separated. 

            Adultery generally bars the adulterous spouse from receiving a permanent spousal support award.  (child support is never affected by the respective fault of the parents)

            Conviction of a felony

            If one spouse is convicted of a felony and is sentenced to jail or prison for a period of more than 12 months, a divorce may be granted to the other party.

            Cruelty or desertion

            Perhaps, the most commonly encountered divorce ground, the grounds of cruelty or desertion may be granted when a spouse has caused a reasonable apprehension of bodily harm, or deserted the other spouse.  The non-offending spouse may be granted a divorce on these grounds, after 12 months from the date of the act.

            Living Separate and Apart

            A divorce may be granted if the parties have lived separate and apart for a period of one year (6 months if there is a property settlement agreement and no minor children).  One of the parties must have had the intention to be permanently separated on the date of separation.  Generally speaking, the parties must not live together at any point during the separation period. 

Whether it is from talking with friends, reading news reports, or hearing celebrity gossip, annulments are frequently misunderstood by the party(ies) wishing to obtain one.  In Virginia, there are only very specific and narrow requirements that must be met for one to obtain an annulment. 

They are split into two groups, the first being void ab initio marriages.  These include:

·         Same sex marriage

·         Bigamous marriage (marrying another while still being married to someone else)

·         Marrying a relative (in Virginia this includes ancestor and descendant; brother and sister whether whole blood, half-blood, or by adoption; and uncles and niece or between and aunt and nephew)

·         Underage marriage

The second group includes voidable marriages, these include:

·         Mental and physical incompetence at the time of marriage

·         Marriage to a felon if the other person did not know at time of marriage

·         If one person had been without the knowledge of the other, a prostitute

·         If mother is with child by another person other than the husband at the time of marriage

·         Fraud

·         Duress

·         Sham marriages – so called “Green Card” marriages

·         Marriage in jest – see Britney Spears

What is the difference between void ab initio marriages and voidable marriages?

            Void ab initio  marriages are thought to be contrary to public policy and the state has an interest in ending the marital relationship.   Support and property rights are generally waived if an annulment is granted on void ab initio grounds, not so with an annulment granted on voidable grounds. 

Are there any time limits after the marriage that I must comply with to obtain an annulment?

            Yes.  Generally speaking, you have to file for an annulment within 2 years of the date of marriage or you will be barred from seeking an annulment.

What is the legal difference between an annulment and a divorce?

            A divorce is the dissolution of a legally valid marriage whereas by granting the annulment, the court is saying that the marriage never existed in the first place. 

***

This is for informational purposes only and was written by Shane L. Jimison, Esq., of Jimison/Homiller, PLC in Richmond, Virginia.