Going through a divorce is a difficult time for all parties in involved. Since 1978, we have guided clients in both uncontested divorces and contested divorces with an aim to get the clients moving on with their lives while achieving the best results possible. For over 35 years we have earned the trust of our clients and an excellent reputation in the legal community with both fellow lawyers and the judges presiding over the cases. While we cannot help you go back in time and fix the issues that have led to this stage, we can help you move forward. We offer a Free Initial 30 Minute Consultation For New Clients. Give us a call or use the contact form below.
Introduction to Divorce – Procedure
Jurisdiction for Divorce
A divorce can be obtained only upon proof of the existence of one of the divorce grounds specifically enumerated in the Code of Virginia. The Circuit Court has jurisdiction over suits for divorce. § 20-96
A divorce is actionable in Virginia provided one of the parties is and has been an actual bona fide resident and domiciliary of Virginia for at least six months prior to the commencement of the divorce suit. § 20-97
The preferred venue (i.e. county) where the divorce suit is actionable is (i) where the parties last cohabited; (ii) the place where the Defendant resides in Virginia (on the option of the Plaintiff); or (iii) where the Plaintiff resides in cases involving an order of publication. § 8.01-261 In addition, a divorce can be obtained in any county in Virginia if neither party objects. Finally, the place where the parties “last cohabited” is the location where they last dwelled together with more or less permanency (rather than where they last had sexual intercourse).
Complaint for Divorce
The divorce action is commenced by filing a Complaint for Divorce by the Plaintiff with the clerk of circuit court. The Defendant must be served with process (i.e. the Complaint) and must file a responsive pleading (typically an ‘Answer') within 21 days after service. The parties can at any time during the divorce process (unless restricted by a court order) request discovery through interrogatories, request for admissions, request for production of documents, and depositions.
Discovery in Divorce Cases
Every discovery request, response, and objection must be signed by the attorney or pro se party, of which signature is a certification that the request, etc., is made in good faith, founded in law, and not for harassment or delay. Discovery is permitted in Virginia regarding any topic that is relevant to the subject matter involved in the pending action but is more narrow in divorce cases to matters relevant to the issues in the case. Information may be withheld in discovery requests if it is privileged or protected from disclosure as trial preparation material. However, the the withholding party must make the claim clearly, and must describe the documents, communications, or things not produced or disclosed in a manner that, without revealing information that is privileged or protected, will enable other parties to assess the applicability of the privilege or protection.
- Interrogatories (VA Rule 4:8) – 30 written interrogatories may be served on one party by another absent leave of court. They must be served on the party submitting them within 21 days or, 28 days if served with the complaint for divorce. Interrogatories allow parties to find out relevant information pertaining to the assets and liabilities of the parties and income and expenses of each of the parties, including bank accounts, retirement accounts, property, and anything relating to fault-based grounds for divorce, such as adultery. Interrogatories are required to be answered under oath. and are not filed with the court absent request by a party or the court. Realistically, it is not uncommon for parties in a divorce to provide little information in an attempt to limit discovery of their assets. At the least, it may provide requesting party notice of existing assets and they can then subpoena related documentation to get more accurate information. Typical interrogatories include questions relating to existing bank accounts, debts, investments, retirement funds, insurance policies, person items of value (e.g. jewelry, antiques, china, etc.), automobiles, credit card balances, prior and current employment, monthly expenses
- Request for Production of Documents (VA Rule 4:9) – no limit to the number of requests that can be served on one party by another. Books, documents, and tangible property, both real and personal, are subject to inspection, copying, photographing, etc. The request must set forth the items to be inspected, describing each with reasonable particularity. The party served with the request must make a written response within 21 days except, for a Defendant, who may serve a response within 28 days if the request was accompanied by the complaint for divorce. As with Interrogatories, requests to a party are not filed with the court unless requested by a party or ordered by the court and typical requests for production of document requests mirror that requested in the interrogatory requests (main difference being the party is requesting documents instead of answers).
- Request for Admissions (Va Rule 4:11) – matters as to which an admission is requested is deemed admitted unless, within 21 days from service (or 28 days from service if accompanied by the complaint for divorce), an objection is served with the grounds therein, a denial in whole or in part, a qualified answer, or a statement of reasons why a matter cannot be admitted or denied. Note that, again, if a request for admission is ignored or forgotten, every request is deemed admitted to from an evidentiary standpoint. As with Interrogatories and Requests for Production of Documents, Requests and Answers are not filed with the court unless requested by a party or ordered by the court. Typical admission requests include: adultery time date and place, commission of a crime relevant to the marriage, and location of money transferred from the marital bank accounts.
Grounds for Divorce
- Adultery – no waiting period is required for this action. Adultery must be proven by clear and convincing evidence. A strong suspicion of guilt alone is not sufficient proof.
- Felony Conviction – no waiting period is required for this action. If either of the parties, after the marriage, is convicted of a felony, is sentenced to actual confinement for more than one year, and cohabitation has not been resumed after knowledge of the confinement, a divorce may be granted.
- Cruelty or Desertion – a waiting period of one year from the date of the act if either party is guilty of cruelty, caused reasonable apprehension of bodily harm, or willfully deserted the other. In addition, the deserted Plaintiff does not need to allege or prove an offer of reconciliation with the offender. A single act of sexual intercourse does not end the desertion (provided there is no intent to reconcile). However, mere coolness and denial of sexual intercourse, where other marital duties are performed, does not constitute desertion.
- Separation – a waiting period of one year. The husband and wife must live separate and apart without any cohabitation or interruption for one year. If the parties have entered into a property settlement agreement and there are no minor children, a divorce may be decreed after six months provided there was an uninterrupted period of no cohabitation.
- Other – a court is not permitted to grant a divorce because the husband and wife, through lack of patience or uncongenial nature, cannot live happily ever after. Further, habitual drunkeness or use of narcotic drugs, in and of themselves, are not grounds for a divorce (though together with misconduct could lead to a case of cruelty).
Defenses to Divorce Grounds
- Connivance – the consent of one spouse to the other spouse to commit an offense that would normally be a grounds for divorce bars a suit for divorce on that ground (e.g. spouse cannot bring a divorce suit on adultery grounds if they consent and/or encourage the other to engage in an adulterous relationship with another).
- Collusion – any agreement between the parties where they seek a divorce by a deceptive imposition on the court (e.g. relaying to the court they have lived separate and apart for one year when, in fact, they still reside together).
- Condonation – forgiveness of a marital offense that would normally constitute a ground for divorce (e.g. spouse forgiving offending spouse for adultery and taking them back does not then allow the forgiving spouse to claim adultery).
- Recrimination – a countercharge in a divorce suit that the complainant has been guilty of an offense of the same degree as the offender which, if both offenses are established, the court will reject them as divorce grounds (e.g. both parties are guilty of adultery and then claim adultery on the other).
Your Free Initial Consultation
We offer a no obligation Free 30-Minute Initial Consultation to discuss your divorce case. You can either come in for an in-office appointment or do a telephone conference. We will talk about the facts of your case, whether any mitigating evidence is necessary, the price for the representation, and the next steps. Be sure to bring any questions you want answered and any documents you wish to be reviewed by the Attorney. While each case is different, our fees are reasonable. We like being in court and enjoy helping people. We can help you too.
Divorce Lawyer Cost
Our fees for divorces depend on a multitude of factors, including whether the divorce will be contested or uncontested. Have the property issues been resolved by the parties? Are there children involved? Is child support or spousal support at issue? Our divorce attorney has been in practice for over 35 years and we offer very competitive rates on domestic cases. We will quote you the fee during your free 30-minute initial consultation so that you can then decide if it works for you.