Divorce: A Legal Procedure Roadmap

February 27
Written by Kristi Wooten

People are often confused and scared as they try to navigate the personal and emotional issues that come along with divorce. Trying to figure out the legal aspects can feel overwhelming, especially to someone who has no former experience with the Court system. The purpose of this article is to provide the reader with a general roadmap of the legal procedures involved with the dissolution of a marriage.

Can we just agree? First and foremost, one question I am often asked is whether the parties can simply agree to the division of their assets and debts. The answer is a resounding, “YES!” In fact, an agreement gives individuals power over the divorce process because it allows them to make decisions concerning their future and the dissolution of their marriage. There may be times when something you want to do might not be allowable by law, such as waiving child support, but for the most part individuals can create their own contract terms. The contract is most often referred to as a Property Settlement Agreement (“PSA”), and this contract may govern all or some of the contested issues.

My spouse and I entered into a PSA, does that mean that I am now divorced? No, but a signed PSA means that you can proceed with securing a divorce on uncontested grounds. Thanks to new procedures in Virginia, you can get an uncontested divorce without you, or your attorney, setting one foot inside the Courthouse.

How do I get a divorce? Whether you are proceeding on an uncontested basis or a contested basis, the Court cannot grant you relief until it is made known that you need relief and are requesting the same. This is done through the filing of a Complaint for Divorce. Your attorney will draft your Complaint, based on the appropriate divorce grounds, and file it with the appropriate Court. The Court will process your Complaint and issue a Summons for your spouse. The amount of time that it will take the Court to process your Complaint will vary from Court to Court, but you should expect at least 14 business days between the filing of a Complaint and the issuance of the Summons. Your spouse will then be served with the Summons and Complaint, meaning a sheriff or a private process server will deliver the documents that the Court processed to your spouse to put him/her on notice that you have filed a Complaint. After your spouse is served, he/she has an allotted time period to respond to the Complaint. Instead of being served with process, your spouse can accept service by signing a particular form. He/She can also waive his/her time period to respond to the Complaint and waive receipt of future notices concerning the divorce filings. The acceptance of service and waiver of waiting periods would speed up the process.

If you are proceeding with your divorce on a contested basis, then your attorney will likely schedule a Pendente Lite Motion after your Complaint has been filed. The purpose of the Pendente Lite Motion is to have a hearing before a Judge requesting temporary relief until the final trial can be held in your case. The hearing typically addresses issues concerning support, maintenance, custody, and/or visitation and certain other limited issues that need to be addressed quickly to preserve the family’s well-being and/or property interests. Essentially, we are asking the Court to put a “band-aid” on the situation, to maintain status quo and to protect your interests until we can either settle all matters or litigate and finalize the divorce.

When will I be divorced? It depends on the circumstances of your case. However, the Circuit Court, which has jurisdiction over divorces, cannot entertain a divorce matter unless there exist fault-grounds for a divorce or the parties have been separated a requisite period of time. In many cases, including uncontested divorce, you may have to wait up to a year from the time you separated before you can properly file a Complaint for divorce with the Court. If the case is contested, then the length of the process will depend on the complexity of the issues, availability on the Court’s docket, your attorney’s schedule, the amount of time it takes to gather the necessary evidence, availability of witnesses, whether there need to be expert evaluations, and the various delays that can come along with each of aforementioned. If you plan to litigate, then be prepared for the long-haul, as it will be a marathon and not a sprint.

The attorneys and staff at Wooten Law Group are well-versed in divorce laws and procedures in Virginia and are familiar with the Courts throughout Hampton Roads. We strive for excellence when representing you. Excellence includes not just representing you well in Court and protecting your legal interests but helping you understand the divorce process and what to expect as, together, we navigate this difficult time in your life.

For a consultation with an attorney with Wooten Law Group, please call (757) 452-4041.