Contested or Uncontested Divorce?

Contested, uncontested, fault, no fault, legal separation, and irreconcilable differences: I hear a lot of people discuss these terms when discussing divorce in Virginia. Let’s review some common questions regarding divorce.

Question: My spouse and I have agreed to get a divorce. Does that mean it is an uncontested divorce?

Answer: No.

Uncontested divorce does not mean that the spouses agree to obtain a divorce. One spouse cannot stop the other spouse from obtaining a divorce, so the spouses do not need to agree to get a divorce. Uncontested means the spouses have agreed upon all the issues that apply to their case (i.e., custody, visitation, child support, spousal support, division of property and debts (called “equitable distribution”), payment of attorney’s fees, and date of separation) and signed an agreement (often called a “property settlement agreement”, a “separation agreement”, or a “stipulation and agreement”). In limited circumstances, spouses can have an uncontested divorce without a written agreement, but these circumstances are the exception and not the rule.

Contested means two spouses have not agreed upon all the issues that apply to their divorce case.

Question: My spouse committed adultery. Is there divorce based on adultery in Virginia?

Answer: Yes.

Virginia recognizes fault grounds for divorce. They are:
a. Cruelty or causing reasonable apprehension of bodily hurt,
b. Willful abandonment or desertion,
c. Adultery, sodomy, or buggery, or
d. Conviction of a felony, wherein one spouse is sentenced to confinement for more than one year and confined for the felony after the conviction, and cohabitation is not resumed after knowledge of such confinement.

A final and complete divorce (called a divorce a vinculo matrimonii) may be awarded to a spouse after one year of separation based on (a), (b), or (d) above. Adultery, however, requires no waiting period, but it must be proven by clear and convincing evidence—a higher standard than other grounds for divorce. If you think one of the fault grounds for divorce applies to your case, it is best to contact an attorney, who can review all the facts and circumstances of your case and advise you how to proceed.

Question: My spouse and I have a signed separation agreement, have no children, and have been separated for 8 months. Does Virginia have no fault divorce?

Answer: Yes.

There are two no-fault grounds for divorce. They are:
1. Separation for one year, or
2. Separation for six months if the parties have no minor children together and have entered a separation agreement.

Question: I just separated from my spouse. How do I file for legal separation?

Answer: Virginia does not allow filing for legal separation, only divorce.

Legal separation in Virginia is the intent of one of the spouses to live separate and apart without cohabitation and without interruption. Intent is shown by the actions of the spouse(s). A clear indication of separation is living in and maintaining separate households. For many spouses, however, living separately in two households in not financially practical. Therefore, spouses that separate within the same household should speak to a knowledgeable attorney about steps they can take to ensure their actions show they are legally separated.

Question: I want to file for divorce based on irreconcilable differences. How can I?

Answer: Virginia does not recognize irreconcilable differences as a ground for divorce.

All divorces in Virginia must be based on a period of separation or fault.

Question: My spouse and I signed a separation agreement and I just need a no fault divorce. Do I even need an attorney?

Answer: Yes, you should still consult with an attorney.

Unfortunately, many clients wait until the court rejects the divorce or the parties have made some mistake in the divorce before they hire an attorney. Even if your divorce is uncontested and you are filing a no-fault divorce, you should still consult a lawyer. Delaying consulting with and hiring an attorney can cause a client to spend more time and incur more expenses to fix the problem than if the client had simply hired an attorney from the beginning.