How to Start a Divorce Action in Virginia
Pursuing a divorce action can be an emotionally trying experience, but you should know that you’re not alone – as many as 42 to 45% of first marriages end in divorce.
As with anything else, one of the most difficult parts is getting started. Follow these steps to start your divorce action in Virginia.
Check Virginia Divorce Requirements
For many soon-to-be ex-spouses, it may be tempting to move far away from your former partner as soon as possible. However, before taking such action, it is best to consult with a divorce attorney.
To file for divorce in Virginia, either you or your spouse must be an actual bona fide resident and domiciliary of Virginia for the six months preceding the filing of the Complaint for Divorce. What does it mean to be an actual bona fide resident and domiciliary? To be a resident means that a party must have an actual permanent home in Virginia. The domiciliary requirement is met if during the six-month period before filing the Complaint, a party intended to live in Virginia indefinitely. Your divorce attorney can assist you in determining whether you meet the jurisdictional requirements to file for a divorce in Virginia.
Determine the Type Of Divorce That Best Suits You
Your divorce attorney can also help you determine, given the totality of your circumstances, what type of divorce you should pursue.
In order to file for divorce in Virginia, there must be grounds for divorce. There are fault grounds and there are no-fault grounds. In Virginia, fault grounds for divorce include adultery, cruelty, desertion and constructive desertion. To proceed on fault grounds, you must have a third party who can corroborate your allegations of fault.
To pursue a divorce in Virginia on no-fault grounds, you must have lived separate and apart without cohabitation or interruption for a specified period of time. If you have minor children, the separation period must be at least one year. The separation period is also one year if you do not have minor children and you are unable to reach a Settlement Agreement with your spouse. However, if you do not have minor children and are able to execute a Settlement Agreement, the separation period can be reduced to six months. Living separate and apart can be accomplished under the same roof, but you should consult with your divorce attorney to learn what actions must be taken to meet the necessary requirements.
Can You Obtain a Legal Annulment?
There are two categories of annulments that you can obtain in Virginia – those that provide your marriage was void ab initio (from the beginning) and those that are voidable. Annulments in general are not common, but an annulment of a marriage as void ab initio is extremely rare. Grounds for such an annulment are bigamous or polygamous marriages and incestuous marriages.
A voidable marriage is one that is presumed valid until a judge determines it is void based on a party proving one of the following conditions: impotency existing at the time of entering into the marriage contract; when, prior to the marriage, either party, without the knowledge of the other, had been convicted of a felony; when, at the time of the marriage, either spouse, without the knowledge of the other spouse, was with child by a person other than the other spouse or had conceived a child born to a person other than the other spouse within 10 months after the date of the solemnization of the marriage; or when, prior to the marriage, either party had been, without the knowledge of the other, a prostitute.
Get Your Legal Documents in Order
The final step in the beginning stages of commencing a divorce action is to gather the necessary paperwork together. Engage a divorce lawyer to protect your interests and make certain you have the documents you need. You can also refer to our blog post on divorce documentation preparation checklist.
A divorce complaint may sound straightforward, but it typically requires compiling quite a bit of information and is necessary to initiate the divorce process. To draft a Complaint for Divorce, your divorce attorney will need information such as:
- Spouses' contact information
- Date and location of marriage
- Proof of residency or jurisdiction
- Reason or grounds for divorce
- Breakdown of debts and finances
- Tax records and credit card information
- Dates of birth, parentage and names of you and your spouse’s children
The type of divorce you pursue and whether you will be able to resolve your issues via negotiation or mediation, or if you will need to litigate your divorce, can influence the amount of paperwork you need to gather and prepare.
"The #1 reason why we stay in unhappy marriages is fear. Fear of change, fear of loss, fear of what their future will be like without your spouse," Divorce Magazine writes. Fear and apprehension are normal, but it’s important to do what is best for you and your family. Start the divorce process in Virginia by reviewing the steps above and enlist the legal services of a local divorce attorney in Northern Virginia for advice on your situation. Contact Hite Kaminsky Family Law today to ensure you’re on track to properly initiate your divorce proceedings.