Chapter 1

Understanding the Divorce Process

Divorces are complicated. There are a number of sub­stantive issues, and there are a number of procedural options involved. The procedures in a divorce case vary greatly based upon whether there is agreement on issues, or whether there are issues in dispute to be resolved by the judge.

A person going through a divorce has to deal with all of the legal complexity at the same time he or she is typically having to deal with strong emotions, disruptions to the home and family life, and the strong emotions of his or her spouse. In short, this is the worst time in your life to have to deal with a very complicated, expensive, demanding legal process.

As you read this book, you will gain a working under­standing of the divorce process, procedures, and issues. This chapter will address many of your initial questions regarding the divorce process.

1.1 What Steps Are Taken During the Divorce Process?

A typical divorce involves a separation, the filing of a complaint for divorce, service of process, responsive pleadings by the other party, discovery, settlement or trial, and the entry of a divorce order. This sounds complicated, but it is made even more complicated by the fact that divorce cases develop in innumerable ways. Some parties settle all issues before they even separate, and then obtain an uncontested, no-fault di­vorce. At the other end of the spectrum, some parties go to court and have the judge decide all of the issues, such as:

• who is going to remain in the house during the separation
• what the children’s schedule will be
• how much support will be paid
• how the property is to be divided

Most common are cases in which the parties are able to agree upon most or all of the issues at some point during the process, before trial.

1.2 Must I Have an Attorney to Get a Divorce in Virginia?

Your divorce can either be handled by you and your spouse acting pro se (which means without an attorney), or by an attorney. Many divorce cases are handled by attorneys be­cause most divorcing parties are not familiar with the require­ments for a divorce, and legal advice cannot be provided by court clerks or other nonlawyers.

1.3 What Is My First Step?

Most people first fully explore whether the marriage can be saved, especially if there are children. Once divorce ap­pears to be a real possibility, the first step should be to become educated about the process and issues. Reading this book is a good first step. Although reading it can be very helpful, it is not a substitute for the advice provided by a good divorce attorney.

1.4 What Is the Process for Divorce if My Spouse and I Settle All of Our Issues by Agreement?

One of you will still have to file a complaint for divorce, the lawsuit requirements have to be met—including service or acceptance of process, and presentation of evidence—and a final order of divorce has to be presented to and signed by a circuit court judge.

1.5 Can I Divorce My Spouse in Virginia if He or She Lives in Another State?

It depends. Yes, if you last lived in Virginia as husband and wife. In other cases, you should consult with a divorce attorney. (This can be a complicated issue as a Virginia court may have jurisdiction to grant a divorce, but not to make other rulings such as property division.)

1.6 What Is Required to Be Legally Separated ?

You cannot be living as husband and wife, and at least one of you has to have the intent to end the marriage to meet the requirements of being legally separated. Separation in the same home can meet these requirements, provided you live like roommates rather than like husband and wife. For example, a sexual relationship, socializing together, carrying out other marital duties, and otherwise acting as a married couple would be inconsistent with a legal separation.

1.7 Is a Signed Document or a Court Filing Required to Establish a Legal Separation?

No.

1.8 If We Both Want a Divorce, Does It Matter Who Files?

Either of you can file a complaint for divorce and obtain a divorce (though you may have different grounds of divorce with different waiting periods available to you). If you think your case may go to trial, there may be an advantage to being the first to file.

1.9 Is There a Way to Keep My Divorce Private?

As a general rule, lawsuits, including divorce cases, are public records. As a practical matter, unless you are a celebrity, it is unlikely that anyone is going to review your divorce file in the circuit court clerk’s office. In rare cases, a motion is made and a judge enters an order to keep a divorce case private.

1.10 What Does It Mean to Accept Service of Process?

Acceptance of service of process is one of the ways to avoid the need to have the sheriff serve the divorce papers. The defendant signs an acceptance of service form before a notary, and, once this form is filed with the court, the service of process requirement is satisfied.

1.11 Why Should I Contact an Attorney if I Have Received Divorce Papers?

You need an attorney if your spouse has filed a divorce complaint against you. You need to understand the process, the issues, the possible outcomes, and your options. Once you have been served with a divorce complaint, you have only twenty-one days to respond, so time is of the essence.

1.12 How Much Notice Will I Receive if My Spouse Seeks a Temporary Order?

A temporary order, also known as a pendente lite order , governs issues such as custody, visitation, possession of the home, and support until the final divorce order is entered. You should receive at least a week’s notice before a hearing on any motion, though in most cases the notice is considerably longer than one week.

1.13 During My Divorce, What am I Responsible for Doing?

That depends upon the attorney you are working with. Some attorneys give extensive homework to clients at the be­ginning of the process. Other attorneys tailor their requests for information and assistance based upon the client and the case.

Some clients are very capable of and interested in helping, and other clients feel overwhelmed at the beginning of a divorce.

Some clients have access to documentation and informa­tion that is needed for the divorce, but sometimes that docu­mentation and information is in the possession of the other party.

Some clients want to do as much as possible to reduce legal costs, and other clients expect their lawyer to handle as much of the work as possible.

Your divorce attorney should meet with you on a regular basis to discuss and agree upon what needs to be done, and how the work is to be allocated between you.

1.14 My Spouse Has All of Our Financial Information. How Will I Be Able to Prepare for Negotiations and Trial if I Don’t Know the Facts or Have the Documents?

In many cases, the parties and their attorneys cooperate to exchange necessary information. If cooperation is not pos­sible, or to supplement the information exchanged voluntarily, once a divorce complaint is filed you may engage in discovery, which will allow you to obtain necessary information from the other side using certain procedures with time limits.

1.15 My Spouse and I Both Want Our Divorce to Be Amicable. How Can We Keep It That Way?

You and your spouse are to be acknowledged for your willingness to cooperate while moving through the divorce process. This will not only make your lives easier and save you money on attorney fees, but it is also more likely to result in an outcome that satisfies you both.

Find a lawyer who understands your goal to reach a set­tlement and encourage your spouse to do the same. Cooperate in the prompt exchange of necessary information. Ask your at­torney about the different negotiation options. Recognize that settlement requires compromise by both parties.

1.16 How Long Will It Take to Get My Divorce?

A divorce can be obtained approximately eight months after the separation if the parties sign an agreement resolving all issues, there are no minor children, and the attorneys and the parties are prompt in taking the necessary steps. If there are minor children or issues to be resolved by the judge, then the divorce will take over a year to resolve. The actual length of time necessary to obtain a divorce varies, based not just upon the nature of your case, but also on the court schedule in the locality where your divorce case is filed.

1.17 When Does My Divorce Become Final?

Your divorce is final once the issues in the case are settled or resolved, and the judge signs the divorce order.