How to Obtain an Uncontested Divorce in Virginia: Basics

An uncontested divorce is one of the most effective and efficient ways to get divorced because it minimizes the financial and emotional costs of divorce. Our divorce lawyers always explore with clients the possibility of settlement and uncontested divorce.

What is an uncontested divorce?

An uncontested divorce is available to divorcing spouses who are able to settle their differences outside of the courtroom. Once settlement is reached, obtaining a divorce boils down to technicalities and paperwork. This is by far the most cost-effective way to obtain a divorce. It is the reason why settlement is recommended over litigation.

What must be settled before obtaining an uncontested divorce?

Spouses must either settle or waive rights regarding property, support, and grounds of divorce. Issues such as custody, visitation, and child support are frequently settled as well. Settlement may be the result of talks over the kitchen table, after a divorce consultation, or with the assistance of divorce attorneys.

It is not unusual to consult with a divorce attorney before attempting settlement negotiations with your spouse. If the issues are complex or more advice is needed on how things may be settled then it is often a good idea to get your divorce attorney more involved. The additional costs are worth the added confidence in the process.

How is settlement or waiver achieved?

Waiver occurs when simple pleadings for divorce on no-fault grounds are filed and unopposed. Settlement usually takes place in the form of a signed agreement. However, parties may also waive certain issues by not raising them in their pleadings. A written agreement is often referred to as a “marital settlement agreement”, “property settlement agreement”, or “separation agreement”. “Marital settlement agreement” is the most appropriate term and will be used here.

What else is required for an uncontested divorce?

As in any divorce, spouses must satisfy Virginia’s jurisdictional requirements such as residency. Our divorce lawyers are frequently asked about the separation requirement.

In Virginia, the separation period required for an uncontested divorce is either 1 year or 6 months.

The separation period is 1 year for spouses who have minor children or who have not entered a written settlement agreement.
The separation period is 6 months for spouses who have no minor children AND have entered a written settlement agreement resolving all matters that otherwise may be raised in the divorce.

How much does an uncontested divorce cost?

The cost of an uncontested divorce varies widely among providers. It is often the case that you get what you pay for.

Some providers offer a cheap “uncontested divorce” but include hidden fees and charges that do not appear until you feel committed to their process. Others provide “cheap uncontested divorces” in the true sense of the term, meaning that things are not done correctly and then they either charge you to fix their mistakes or leave you to find someone else to pick up the pieces.

This brief outline should be useful to those who are trying to learn more about the divorce process in general as well as those actively seeking an uncontested divorce in Virginia.

Virginia Uncontested Divorce: A Step-By-Step Guide

A lot of my website visitors are at the very beginning of one of life’s most challenging journeys. They are either considering asking for a divorce or have been told by a spouse that a divorce is in the works. It is easy for a lawyer to get caught up in the technicalities and forget that not everyone deals with divorce on a day-to-day basis in their lives.

Many times, all a person wants when they first speak with me is a basic explanation of the process of divorce. I do my best to provide this information without getting too caught up the details before they are ready. I hope this step-by-step guide to a Virginia uncontested divorce will serve as a refresher for current clients and a valuable educational resource for those of you who are still reading on the internet and trying to learn more before taking any next steps.

Here you will find a step-by-step guide to the basic stages in an uncontested divorce.

Step 1: Divorce negotiation and settlement agreements.

Prior to filing for an uncontested divorce, it is highly recommended that the parties enter an agreement settling the division of all marital property, assets and debts as well as spousal support. However, if there are no marital assets, debts, jointly titled assets or debts and neither party is interested in receiving spousal support then you are ready to move on to the second step, “filing for divorce”. I recommend that all of my clients enter a settlement agreement (usually referred to as a “property settlement agreement”) before moving forward with an uncontested divorce. Although it is not always necessary, a property settlement agreement may help to avoid expensive problems down the road.

Entering a property settlement agreement is essentially working out on paper who will get what and any terms and conditions attached to the division and/or transfer of marital property. In the case of an uncontested divorce this is frequently accomplished “over the breakfast table”. In other words, spouses try to work things out on their own with pen and paper without incurring the costs of negotiating through attorneys.

When you and your spouse reach an agreement on how to divide the marital property and debts then it is usually a good idea to draft a formal written agreement setting forth who gets what. It is highly recommended that you have this agreement drafted by an experienced divorce lawyer.

If your spouse presents you with an agreement to sign then it is also highly recommended that you have the agreement reviewed by an experienced divorce lawyer of your choosing. Never rely on representations concerning the agreement made to you by your spouse’s attorney. Although he or she may mean well, or maybe not, your spouse’s attorney owes you no obligation or loyalty and has no duty to protect or look out for your interests.

Once a separation agreement is signed it is binding with very few exceptions. There is too much at stake for you not to have any marital agreement reviewed before you sign it.

After entering a property settlement agreement, it is time to move on to the second stage, “filing for divorce”.

Step 2: Filing for Divorce – the “Complaint”.

Filing for divorce occurs when one of the spouses files a document, referred to as the ‘”Complaint” for divorce, in the appropriate Circuit Court Clerk’s office. A complaint for divorce is usually filed in the jurisdiction where the spouses last lived together or where the non-filing spouse (the “defendant”) currently resides. Here is a link to a jurisdictional map for Virginia’s Circuit Courts.

In Virginia, spouse’s may file for an uncontested divorce after being separated for either 6 months or 1 year, depending on the circumstances.

If there are no minor children then the parties may file for divorce after being separated for 6 months if they have also entered a separation agreement addressing all the property and support issues that would otherwise be decided by the trial court as part of a divorce proceeding.
Otherwise, if there is no agreement or the parties have minor children, then filing for an uncontested divorce may only occur after 1 year of separation.

It is important to note that in some contested divorces, such as those alleging adultery, the period of separation requirement may not apply.

The “Complaint” usually must be accompanied by a Civil Cover Sheet for filing with the Circuit Court Clerk, a check to cover the filing fees, and an Addendum for Protecting Personal Identifying Information. The “addendum” is to allow for protection of personal information, such as social security numbers, that are required by the court but must be protected from public access. If there is a settlement agreement then that should also be referenced in the Complaint and filed as an exhibit.

Here are links to the Civil cover sheet and addendum:

Cover Sheet for filing civil actions

Addendum for Protecting Personal Identifying Information

Here is a link to the Virginia Circuit Court filing fees calculator

Step 3: The “Answer” to the “Complaint” or the “Waiver” option.

After the filing of the complaint there are two options for the defendant in an uncontested divorce. First, the defendant may file an “Answer” to the complaint, which is a document also filed with the court clerk. The second, and most commonly chosen option in an uncontested divorce, is for the defendant to sign a “Waiver of Service and Process” form which is then provided to the plaintiff (the spouse who filed the complaint) or plaintiff’s divorce attorney. This form is then filed with the court clerk so that the divorce may proceed as efficiently as possible.

Here is a link to the waiver of service and process form provided by the Virginia Supreme Court.

The advantage of using a waiver is that the parties avoid the cost of service of the complaint on the defendant by a private process server or the local sheriff as well as avoid the need to draft the “Answer” which usually requires an attorney and thus legal fees and costs.

Step 4: Filing depositions or affidavits as a substitute for in-person testimony.

In an uncontested divorce the parties are not usually required to appear in court to give testimony. Instead, depositions or affidavits may be used to present the necessary testimony to the court establishing that the spouse’s are entitled to a divorce. There must be a minimum of two deposition witnesses or affiants to establish and corroborate the grounds for divorce. It is highly advisable that these documents be prepared by an experienced divorce lawyer.

Step 5: Entering the “final decree” of divorce

After filing of the affidavits or depositions the final stage of the divorce process has been reached. At this point the final decree is presented to the court for entry.

The final decree sets forth the information taken in the form of deposition or affidavit as findings by the court as well as other necessary information that may be required if support is to be paid or if there are provisions for a settlement agreement or other terms entered by the parties. Once the court has reviewed the final decree and is satisfied with it, the trial judge signs the order and it is filed by the court clerk.

At this point the divorce is final and the parties are required to abide by any terms expressed in the final decree of divorce because it is now a final court order.

In cases where retirement assets are being divided, the court may leave the divorce matter open on its docket for later entry of any orders necessary to divide those assets, such as a Qualified Domestic Relations Order or “QDRO” for short. It is usually the case that retirement assets cannot be divided until after the divorce is final.

LEARN MORE ABOUT UNCONTESTED DIVORCE OR GET HELP AND ADVICE FROM A VIRGINIA DIVORCE LAWYER:

An uncontested divorce is always desirable because it avoids the costs of litigation, which can be very high depending on the issues involved. Although pre-divorce negotiation can also be costly, it is always a fraction of the cost of litigation. However, if an agreement cannot be reached and the stakes are high enough then litigation may be the only option. An evolving cost-benefit analysis is always required when negotiating to avoid the costs of litigation. This is discussed in more detail elsewhere on my website and is always at the center of ongoing discussions with clients. It is important to note that settlement is always possible, even on the eve of trial, so it is always a part of divorce considerations.

If you are interested in learning more about an uncontested divorce or would like to speak with an experienced divorce attorney about drafting a divorce settlement agreement, please contact the Moore Law Firm PLLC and arrange a consultation with our experienced divorce lawyer.

What do we charge for an uncontested divorce?

We offer flat fees for uncontested divorces. Our fees may not be the cheapest but there are no hidden surprises and the work is handled professionally.

If you ask us to draft the agreement then you will need to come to us with the general terms you and your spouse agreed to. We will then create a solid agreement tailored to your specific circumstances.

We are always willing to include a little extra time to make a few adjustments to the agreement for you but if it turns into a divorce negotiation then we reserve the right, upon notice to you, to begin charging for our time at our standard hourly rates. Think of this as an incentive to work things out with your spouse ahead of time.

If you think you are eligible for an uncontested divorce then you are encouraged to contact us. We will be happy to spend a few minutes on the phone discussing your situation with you.