So, in a nutshell, here is how we accomplish for our clients a no-fault, uncontested divorce. (But please read the caveat below.)
CAVEAT: Just because you and your spouse have agreed to a divorce, that alone does not mean that you meet the criteria for an ‘uncontested divorce’ as we use that term on this site.
An “uncontested” divorce means that the parties agree to be divorced (or at least not to interfere with the other’s request for the divorce). It also means that the parties have resolved all custody, visitation, marital property and support issues (or at least both parties must agree not to litigate them in the divorce court).
Typically these issues are settled well ahead of any divorce filing in the form of a written Property Settlement Agreement (a/k/a “PSA” or “Separation Agreement”). There are additional technical requirements that must be followed before the uncontested divorce can be made final, but a pre-existing Property Settlement Agreement is the essence of an ‘uncontested divorce’ (see Property Settlement Agreement page elsewhere on this page)
Some people have been married such a short period of time that they have accumulated no property together, they have no children and do not intend to ask for support. In such cases, the divorce likely can safely proceed without a PSA. In all other cases, we strongly encourage a Property Settlement Agreement.
The No-Fault, Uncontested Divorce Process in Virginia
Complaint: To start the divorce, your attorney will draft a document called a “Complaint.” The Complaint contains the factual allegations (date of marriage, names of children, if any, etc.) and legal elements (residency, length of separation) which, when proven, would demonstrate to the court that you are eligible for a divorce.
Filing: The Complaint is mailed (or if you want faster action—hand carried) to the Clerk of the appropriate Circuit Court. When the clerk marks the Complaint as “received”, your case is considered “filed.”
Service of Process: Constitutional concepts of “due process” require that your spouse receive formal notice of the filing of the complaint. Typically the Clerk of Court will send a copy of your filed Complaint to the sheriff of the jurisdiction where your spouse resides. The sheriff would, in turn, serve the Complaint on your spouse along with a document called a “Summons”. The Summons advises your spouse that a divorce action is now pending. If your spouse wishes to oppose the divorce, he or she has 21 days to file a response. (If you spouse does file a response, that would make the case ‘contested’ and take it outside of the scope of this site.)
Alternative – Waiver in Uncontested Matters: In divorce actions processed as “no-fault” and “uncontested,” your spouse may prefer not to be served by the sheriff. (It is a bit embarrassing to have the sheriff walk up to your front door, or appear at his or her job.) Rather, your spouse may wish to fully cooperate in the process and be willing to sign a document called a ‘Waiver’. The waiver states to the effect that “I waive sheriff service, I waive my right to file an answer, I waive the right to have other notices served on me, and I want the divorce concluded as soon as possible.” Our fee assumes that your spouse will sign this waiver.
‘Affidavit’ (the ‘proof’ of your case): In Virginia, you must ‘prove’ that you are entitled to the divorce you are seeking. Most commonly, this is done by signing of affidavits affirming the allegations you made in your Complaint are true. (Two affidavits are required – one by you, and the other by a witness who knows the essential facts.) The affidavits affirm the date of your marriage (we will also will typically your marriage certificate), and other assertions in the complaint: domicile issues, children, and most importantly, the length in months of your separation (either 6 months or 12 months, minimum). If a separation agreement has been signed by you and your spouse, and it is placed among the papers documenting your entitlement to a divorce.
Final Decree: Once the affidavits have been signed, we will prepare a document called a “Final Decree of Divorce.” It again recites the now proven facts surrounding your marriage, children issues, separation dates, and the like. (No, judges don’t actually write the Final Decrees.) We will submit the Affidavits, the marriage certificate, the separation agreement and any other relevant documents, to the presiding judge for his or her review. The judge will read the entire file and determine for him/herself that the substantive and technical requirements of granting the divorce have been met. If they have, the judge will sign the Final Decree and you will be officially divorced at that moment.
Once the final decree is signed by the judge, you are divorced. Your divorce will be really, really final and unappealable thirty days after the judge signs the final decree. Your “official” divorce date, however, is the actual day the judge signs the Final Decree.
Time Frames: The entire process, from initial consultation with your attorney, to the Final Decree being in your hands, typically takes about 4-6 weeks. The fees quoted on this site contemplate the ‘ordinary’ process. There are opportunities for shortcuts that can dramatically shorten the time by several weeks. (We have actually completed divorces in a matter of a few days. However, this requires cooperation of both the client and the spouse to expedite the paperwork.) Ask your attorney about this special service.