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Virginia Divorce Process
Preparing the Divorce Papers
In Virginia, the spouse filing for divorce is the plaintiff; the other spouse is the defendant. Divorces are filed in one of Virginia’s circuit courts, which include 31 judicial districts with 120 separate circuit courts. Some counties have more than one circuit court. The plaintiff generally files in the county where he or she resides. If the spouses live in separate Virginia counties, the action is filed in either the county where either spouse resides.
The Virginia State Courts offer forms for completing an uncontested divorce available through the various county websites or hard copy at the courthouse. In addition to the Complaint for Divorce, the action begins with the filing of the VS-4 (Vital Statistics) Form, and Cover Sheet for Filing Civil Actions.
Each county has particular rules about divorce forms, and the divorce paperwork varies from county to county in Virginia, and counties may require forms in addition to those listed.
Some of the forms must be signed while in front of a Notary Public, and the forms that require notarization should not be signed until the person(s) required to sign are in front of a Notary Public.
After completing all the forms, make at least two copies of everything. The court keeps one, the plaintiff keeps one copy, and the defendant gets one.
Filing the Paperwork with the Court
The plaintiff files the divorce papers in the Circuit Court of the county or city where spouses last lived together or where either the plaintiff or the defendant still lives. If the plaintiff is unable to pay the filing fees or fees to have the papers served on the other spouse, he or she may file a Petition For Proceeding in Civil Case Without Payment of Fees or Costs. If the court approves, the plaintiff does not pay the filing fees.
Serving the Documents
The plaintiff must make sure copies of the divorce papers go to the spouse. This delivery is called “service of process.” Papers may be served a number of ways, including acceptance of service, whereby the defendant agrees to accept service of the divorce paperwork, or personal service, which is personal delivery to the defendant by a deputy sheriff or private process server.
Disclosing Financial Information
Virginia's laws promote fair and equitable distribution, either by agreement between the spouses, or by intervention of the court. To that end, they require that financial decisions be based on full disclosure by each party to the other of all assets, liabilities, and income.
Uncontested vs. Contested Divorce
In an uncontested divorce, spouses reach an agreement on all issues in their divorce and avoid the headache and stress of attending a trial before a judge. This typically means an expedited process for divorcing spouses. In an uncontested situation, after service of process has taken place, the plaintiff files a Request for Ore Tenus Hearing. An Ore Tenus hearing is an oral hearing in front of a judge. The plaintiff submits an Ore Tenus Request form and a Final Decree of Divorce as well as proof of service and a completed VS-4 Form and a separation agreement if the spouse signed one.
On the date of the hearing, the plaintiff must bring the divorce papers to court as well as one corroborating witness who has direct personal knowledge of the marriage and circumstances of its breakdown. If all legal requirements are met, the judge grants the divorce at the Ore Tenus hearing and signs the final divorce decree.
On the other hand, spouses unable to agree face the likelihood of a contested divorce, which can mean a trial where a judge decides the open issues.
Finalizing the Divorce
Unlike some other states, Virginia does not have a waiting period for a divorce. In an uncontested divorce, the spouses avoid going to court altogether by filing a request to have their divorce heard by affidavit, rather than through a court hearing. The wait for the court to sign a divorce depends on the judge’s schedule; however if the defendant accepts service and waives answering the divorce complaint, the divorce can be handled very quickly. The date the judge signs the Decree of Divorce is when the divorce becomes final.
The Virginia court gives primary consideration to the best interests of the child in determining custody. The court assures minor children of frequent and continuing contact with both parents, when appropriate, and encourages parents to share in the responsibilities of rearing their children. In determining the best interests of a child, the court considers a variety of factors including the age, physical and mental condition of the child as well as each parent, the needs of the child, the role of each parent and the rapport of each parent, and the "willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child," family abuse, and "other factors as the court deems necessary and proper to the determination."
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