As the first installment in our From Chaos to Clarity series, we’re breaking down one of the most emotionally, physically, and legally overwhelming situations that countless people will ever experience: Divorce. If you’d like to schedule a call with a member of our team to discuss your personal situation, please click here.
The Basics
Though it may come as a surprise to some, getting a divorce is not as easy as getting married and often requires quite a bit more work and time. However, your exact circumstances can play a big role in just how long it will take for you and your partner to be legally single again.
The big four stages of a divorce are: (1) separation, (2) filing, (3) discovery, and (4) final ruling.
If you have kids under 18, custody, visitation, child support, and spousal support can all be dealt with during the divorce or, in certain cases, with the Juvenile and Domestic Relations (“JDR”) Courts. There are pros and cons associated with both of these options that are extremely case-specific. For more information about seeking custody, visitation, or support in the JDR Courts, check back in a few weeks for our From Chaos to Clarity post breaking down those cases.
What does being “separated” really mean?
The default rule in Virginia is that a married couple must live “separate and apart” for a full year before they can file for divorce. The exact date you begin living “separate and apart” (also known as your “Date of Separation“) can be hard to gauge and is dependent on your unique circumstances. Generally though, the Date of Separation is when one of you moves out of the home, or when one of you decided that you were going to separate and began living as if you were no longer a married couple. If you don’t remember your specific Date of Separation, you and your spouse can typically agree on a date.
Now, a full year seems extreme, but the thinking behind it makes a certain amount of sense: divorces require a lot of work and we don’t want people making these decisions lightly.
But don’t worry! The one-year wait period can be eliminated or reduced in special circumstances.
The law recognizes that some marital missteps are so severe that law eliminates the wait period entirely. These situations include instances where one spouse commits adultery (has sex with someone other than his or her spouse during the marriage), and where a spouse is convicted of a felony offense and sentenced to one year or more in prison. Unfortunately, these are the only cases in which the wait time is completely eliminated. Situations like abuse, abandonment, or simply wanting to part ways all require you to wait at least six months after your Date of Separation.
If your case doesn’t involve adultery or a felony conviction, the law still wants to reward you when who make the Court’s job easier. This is done by entering into a contract called a Property Settlement and Separation Agreement (often called a “PSA“) that divides up all of your property and debts so a court doesn’t have to. If you and your spouse are able to come to an agreement about your property and debts and sign a PSA, the law reduces your wait period to six months.
There is a pretty big exception to the six month reduction though – the law will not reduce your wait period if you have a child under 18. This is because the law wants to be extra careful when kids are involved and wants to make sure you and your spouse have had enough time to try to work things out before putting the kids through a divorce.
So I’ve waited. Now what?
Once you’ve waited the required amount of time, it is time to “file.”
What’s being filed? In this case, “filing” refers to a writing called a “Complaint for Divorce.” A Complaint for Divorce addresses all the statutory requirements for getting a divorce, your qualifications for getting a divorce, and the reason (or “grounds”) for your divorce. There are five grounds for divorce that Virginia recognizes: (1) adultery, (2) felony conviction, (3) cruelty, (4) abandonment or constructive desertion, and (5) “irreconcilable differences.”
Of the five grounds for divorce, the first four are what are called “fault-based” grounds. These require a lot of proof but, when the proof is there, the Court is able to award potentially significant sums to the spouse that’s not at fault. Moving forward on fault-based grounds is often an emotionally difficult and costly decision that should be discussed with an attorney. The fifth ground, “irreconcilable differences,” is the default grounds for most divorce cases where a couple wants a divorce simply because they’re ready to move on.
Who files it? While anyone can technically file a Complaint for Divorce, an attorney is the best person to do it, because he or she can make sure that everything is written correctly and gets to the right person on time.
Where is it filed? There are a number of special rules for figuring out which Court is proper, so consulting with an attorney is often necessary to figure out which Court is best.
How is it filed? There are a few different ways a Complaint for Divorce can be filed, though the most common are by mailing and hand-delivering.
Discovery – The Most Costly (and Most Revealing) Part of Contested Divorces
If you and your spouse aren’t able to come to an agreement and sign a PSA, the next phase of the divorce process involves gathering information to use during trial. This is done through “Discovery.” Discovery takes four different forms: (1) interrogatories, (2) requests for admission, (3) requests for production of documents, and (4) subpoena duces tecum. Don’t stress about these terms – they’re basically just different types of questions and requests to get different documents and things.
During Discovery both spouses (or likely their attorneys) will send a bunch of questions and requests back and forth and the spouses will be required to answer the questions and hand over the requested documents. Attorneys can make sure you only hand over what you have to hand over and that the right questions are asked, so it’s often best to work with an attorney if you find yourself getting any of these sorts of requests.
The Final Ruling
If you and your spouse don’t come to an agreement, the Court will have to hold a trial to determine if you and your spouse meet the requirements to get divorced (such as the wait period) and to divide up your property. This can be an extremely emotionally and, especially in fault-based cases, traumatic experience, as we may need to discuss some difficult material in order to get you the result you’re looking for. Once the trial is over, the Court will require an attorney to draft a “Final Decree of Divorce.” The attorney then sends the Final Decree of Divorce to the Court, along with a few other pieces of paperwork. Once the judge signs off on everything, you are officially divorced and legally single!
If you and your spouse come to an agreement, the Court will not need to hold a trial and the rest of the case can be handled with paperwork. This is often the fastest, cleanest, and least emotionally challenging way to resolve these cases.
How Long Does it Take?
It’s hard to predict exactly how long the process can take. If you and your spouse have already come to an agreement to divide up the property and debts, a divorce can generally take 90-120 days after the signing of the PSA. If we have to go to trial though, the exact amount of time can vary considerably depending on the Court’s scheduling and the issues in your case. An attorney may be able to help give you a better idea on a timeline after reviewing your case with you.
Looking to Move Forward?
If you’re ready to move forward or would like more information, schedule a call today by clicking here or reach out through our “Contact Us” page. No matter your situation, we’ll be with you every step of the way!