Divorce Frequently Asked Questions
** disclaimer **: The statements below do not constitute legal advice nor do they imply the formation of an attorney/ client relationship. You should seek advice from a licensed attorney regarding your specific situation prior to engaging in legal action.
How long do my spouse and I have to be separated before filing for divorce? When filing on "no fault" grounds (meaning that you are not seeking a fault-based divorce on grounds (e.g. adultery), you must generally live separate and apart for one year. If you and your spouse have no minor children and are able to execute a written Property Settlement Agreement resolving all martial issues (i.e. equitable distribution of property, spousal support, and fees) by mutual agreement, you may seek a "no fault" divorce after living separate and apart for six (6) months). It is possible in some Virginia jurisdictions to live "separate and apart" under the same roof; specifics regarding living "separate and apart" under the same roof are best discussed in depth with your chosen attorney, as those determinations are fact specific to each case and can vary by jurisdiction.
What if my spouse and I recently separated and I need assistance from the Court now? What course of action can be taken during the separations "waiting" period? You can petition the court for Pendente Lite relief (meaning you request a court determination "pending litigation" of matters such as child or spousal support, property issues, etc.) If you and your spouse can negotiate the terms of a Property Settlement Agreement (which often involves attorneys on one side or both), the Property Settlement Agreement can be executed during the waiting period and can encompass some or all of the martial issues. Be sure to ask your attorney about differences in enforceability of the terms of the Property Settlement Agreement both before and after entry of a Final Decree of Divorce.
What is the timeline from beginning to end of an uncontested "no fault" divorce? It varies on whether the parties can come to agreement with a Property Settlement Agreement prior to the initial divorce complaint filing and varies with jurisdiction. If the parties have been separated for the required time period and have executed a Property Settlement Agreement, the time from filing of the Complaint to entry of a Final Decree can be as little as eight (8) to twelve (12) weeks.
I do not live in Virginia, so can I file for Divorce here? Virginia may exercise jurisdiction: (1) if you and your spouse were married in Virginia; (2) if you and your spouse last cohabited as married persons in Virginia; (3) or if the responding party (i.e. the "Defendant") has resided in Virginia for at least six months preceding the filing of the Complaint. This is only a general guideline and specific questions regarding complicated jurisdictional matters are best discussed in depth with your chosen attorney.
How do I know whether I am the Plaintiff or Defendant? If you are the party who files the Complaint for Divorce, you are the Plaintiff. If you have been served with a Complaint for Divorce filed by your spouse, you are the Defendant.
Do both parties have to hire attorneys? Absolutely not, and in fact both parties can proceed pro se; however, sometimes pro se (unrepresented) parties face challenges in meeting court requirements in order to obtain a Final Decree. Often divorces are initiated pro se, but later involve attorneys to finalize the matter.
My spouse and I do not own any property, so do we really need a Property Settlement Agreement? What if my spouse will not execute a Property Settlement Agreement or Final Decree of Divorce? A Property Settlement Agreement is not a requirement if you are filing a divorce on the grounds of a one-year separation; however, in most cases it is recommended simply to ensure issues do not arise later and your attorney will be able to guid you on this based on your martial property. A court hearing can be requested if necessary to obtain entry of a Final Decree of Divorce and finalize any remaining marital issues (e.g. property distribution and support).
Child Custody and Visitation
Situations dealing with child custody have to be handled with absolute delicacy. Children deserve to be treated with compassion, and any ruling needs to have your child's best interest in mind.
Filing for a protective order need to be handled quickly. If not filed properly, the Court may dismiss the matter which you can't afford to have happen in an urgent situation. I know how important it is to file and serve protective orders in order to keep the situation as contained as possible.
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Filing for a Divorce can be a long and stressful process, trying to keep up with the paper work, filing dates and the constant back and forth between you and your spouse. The first step is to see whether you fall into the Contested or Uncontested Divorce category. This will make a difference in regards to what needs to be filed with the court. Divorce can be hard on everyone involved which is why it might be your best move to hire an attorney who will ensure that your rights are protected and minimize the amount of contact with your spouse and stress that may be involved.
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