A Five Step Guide to the Divorce Process in Virginia

The divorce process in Virginia can be broken down into the following five steps:

1. Establish a Ground for Divorce
2. Negotiate a Separation Agreement (Where Feasible)
3. Wait the Required Time Period to File the Divorce
4. Go through the Court Process
5. Finalize the Divorce

Step One: Establish a Ground for Divorce

Before a request for divorce can be filed in Virginia, there must be one or more legal grounds for divorce.

Virginia Code § 20-91 lists the following grounds for divorce:

1. Adultery, Sodomy, or Buggery
2. Cruelty and Reasonable Apprehension of Bodily Hurt
3. Willful Desertion or Abandonment
4. Felony Conviction and Confinement
5. No-Fault Separation

Step Two: Negotiate a Separation Agreement (Where Feasible)

Virginia permits and favors the settlement of disputes through agreements. 1 Married couples have the ability to settle all issues related to their marriage at the time they separate through a separation agreement (also referred to as a Property Settlement Agreement or Marital Settlement Agreement). 2 The terms of the separation agreement may be made a part of the Final Decree of Divorce, and the Judge cannot order terms that are inconsistent with the parties’ agreement in matters related to property and debts, spousal support, and attorney’s fees. 3 Some of the issues that can be addressed in a separation agreement include:

1. Ground for divorce
2. Division of marital property and debts
3. Spousal support
4. Child support, and
5. Child custody and visitation

Although listed as step two of the divorce process, the negotiation of a separation agreement can occur at any time, including prior to the filing of the divorce in court, after the filing of the divorce, and even during the pendency of an appeal. 4 Negotiating a separation agreement is not a required step that must be completed prior to filing for divorce, except in the case of a no-fault divorce based on a six-month separation. However, negotiating a separation agreement is often recommended. A separation agreement allows the parties to have control over the outcome of their case as opposed to putting their life in the hands of a judge who only gets to see a brief snapshot of their lives and circumstances. Additional benefits include potential significant savings in attorney’s fees and preventing or ending the bitter conflict and mudslinging that often accompany an all-out court battle. When children are involved, an agreement can help keep them out of the court process, which can reduce the negative effects that separation and divorce likely will have on them.

It is not always possible to reach an agreement immediately. One side may intentionally seek to delay the process if it would force them to have to pay support sooner. If immediate support is needed and the other party is not cooperating, the best strategy may be to table negotiations and file for support right away. Virginia courts are limited to awarding support back to the date of the filing of an initial petition so a delay in filing can result in a financial loss if the other side is not willing to voluntarily pay support. 5 Additionally, filing a court action may suddenly motivate an otherwise uncooperative party to engage in negotiations since an unpredictable court decision is looming.

Another reason to temporarily forego negotiation in favor of court action involves the discovery of assets and income. If one spouse is in the dark about the marital finances, and the other spouse refuses to disclose all of his assets and income, getting into court as soon as possible may be the best strategy to acquire this information and protect against the potential concealment and disposal of assets. Court litigation affords the parties the ability to compel disclosures of financial and other information relevant to the divorce through a process called discovery. A court order also can be put in place that forbids the parties from disposing marital assets. 6 After discovery is completed, it is almost always a good idea to attempt settlement. Failure to make a good faith attempt to settle can be weighed by the court in awarding attorney’s fees. 7

Step Three: Wait the Required Time Period to File the Divorce

There is a difference between filing for divorce and finalizing a divorce. Filing for divorce just starts the court process. To end the process, a judge must sign a Final Decree of Divorce. Below is a comparison of the waiting periods that apply to each ground of divorce.

-one year to file and finalize if there are no minor children and no separation agreement

Step Four: Go Through the Court Process

The Divorce Complaint

The court process for a Virginia divorce begins with the filing of a divorce complaint in a Virginia circuit court. The complaint is the initial court document that asks the court to grant a divorce and decide the other issues relevant to the divorce such as the equitable distribution of marital property and debts, spousal support, child support, child custody and visitation, and payment of attorney’s fees. The court must have power over the parties (called personal jurisdiction) and power over the type of case (called subject matter jurisdiction) for the divorce to proceed to conclusion. Common bases for jurisdiction over the parties include that both parties live in Virginia or one party lives in Virginia and the couple maintained a matrimonial domicile in Virginia at the time of their separation. 10 In order for a Virginia court to have the power to grant the divorce, the complaint must state a valid ground for divorce and provide that at least one of the parties was at the time of filing of the divorce and within at least 6 months preceding the filing an actual bona fide resident and domiciliary of Virginia. 11

Service of the Divorce Complaint

After the complaint is filed, the other party (called the defendant) must be notified of the divorce. This can be accomplished by having a sheriff or private individual authorized to serve legal documents (called a private process server) deliver the complaint and a summons to the other party. Under Virginia Code § 8.01-296, the process server must first attempt to put the summons and complaint in the hands of the defendant. This is called personal service. If the defendant is not available, the process server can leave the summons and complaint with another family member age 16 or older that lives full-time at the defendant’s residence. If no family member is available, the summons and complaint can be posted on the front door of the defendant’s residence. These methods are referred to as substituted service.

If the location of the defendant cannot be determined after due diligence, service by publication can be used. Service by publication generally involves the court issuing an order of publication that includes the details of the case and a formal demand for the defendant to appear in court on a date no sooner than 50 days after entry of the order of publication. The order of publication typically is published in a local newspaper for four successive weeks and is posted at the front door of the courthouse and mailed to the last known post office address of the defendant. 12 Service by publication is a last resort that costs additional money and limits the power of the court. The court only has in rem jurisdiction, which means the court can grant a divorce but cannot determine personal obligations such as payment of child and spousal support. 13 This is true even if a property settlement exists that addresses support, although the contract itself may be independently enforceable. 14 Virginia Code sections 8.01-320 and 20-104 through 20-105 discuss the service of process requirements for nonresidents of Virginia.

A defendant may waive formal service of process by signing a statement under oath in front of a notary public or clerk that he or she agrees to waive process. 15 Additionally, a defendant may waive formal service of process by making a general appearance in the case, such as by filing an answer to the complaint or otherwise engaging in conduct related to adjudicating the merits of the case. 16 Waiving formal service of process is common when the parties have already executed a separation agreement prior to the filing of the complaint. If a separation agreement already exists, the divorce can be finalized as described in Step 5 of this guide after formal service of process occurs or is waived.

Response to the Complaint and Filing of a Counterclaim

After the summons and complaint is served on the defendant, the defendant must respond to the complaint by filing an answer or other legally recognized response within 21 days. 17

The most common way for a defendant to respond to the complaint is by filing an answer. The answer admits or denies each numbered paragraph in the complaint. A general denial of the allegations in the complaint is not permitted. 18 If any affirmative defenses exist, they should be pled along with the answer. An affirmative defense is a defense that, if proven, constitutes an absolute bar to the plaintiff’s claim. 19 Examples in the divorce context include justification for leaving as a defense to a desertion claim, 20 forgiveness (also called condonation) of a spouse’s alleged adultery through voluntary sexual intercourse after knowledge of the adultery, 21 and that more than five years has elapsed since an alleged act of adultery making the claim time barred under the statute of limitations. 22

If the plaintiff has not properly stated a claim upon which relief can be granted, a demurrer (basically a motion to dismiss) can be filed. 23 A demurrer in a divorce case states that even if all the facts in the complaint are assumed to be true, the facts are not enough to establish the ground of divorce. For instance, If a complaint alleges a single act of cruelty and the act is not “severe and atrocious as to endanger life” nor “indicates an intention to do serious bodily harm or causes reasonable apprehension of serious danger in the future” nor the “circumstances show that the acts are likely to be repeated” the complaint is insufficient to establish a cruelty ground of divorce under Virginia law and a demurrer would be an appropriate response to the complaint. 24

A motion to dismiss for lack of personal jurisdiction can be filed if the defendant does not reside in Virginia, did not reside in Virginia when the ground for divorce arose, did not live with the plaintiff in Virginia at the time of the parties’ separation, never executed an agreement to pay spousal support or child support in Virginia, never conceived or fathered a child in Virginia, never was ordered to pay child support or spousal support by a Virginia court, and otherwise lacks minimum contacts with Virginia as detailed in Virginia Code § 8.01-328.1. Care must be taken not to address the merits of the case when the objection to personal jurisdiction is made or else the objection will be waived. 25

If the defendant also wishes to be divorced and wants to be in court on his or her own divorce filing, it is typically wise for the defendant to file his or her own divorce action called a counterclaim at the time a responsive pleading is filed if the defendant can establish a ground of divorce at that time. The counterclaim generally must be filed within 21 days of service of the complaint. 26

Discovery

Rule 4 of the Rules of the Supreme Court of Virginia provides certain tools that parties may use to obtain information relevant to issues in the case, including Interrogatories, Request for Production of Documents, Requests for Admission, Subpoenas Duces Tecum, Physical or Mental Examinations, Vocational Evaluations, and Depositions.

1. Interrogatories. Interrogatories are written questions that must be answered under oath. 27 Common interrogatories include requests to disclose bank accounts, retirement plans, real estate, vehicles, and other personal property that the opposing party has an interest in, and a request for disclosure of the other party’s income and any debts that the other party is responsible for. Interrogatories are limited to 30 questions, including subparts, unless additional interrogatories are permitted for “good cause shown. 28 Answers, or where appropriate objections, must be made within 21 days or 28 days if the interrogatories are served on a party along with the complaint. 29

1. Request for Production of Documents. A Request for Production of Documents is a request for documents and electronically stored information, including video and audio recordings, photographs, requests for bank documents, retirement statements, credit cards statements, deeds and titles to property, tax returns, paystubs, text messages and other relevant communications, and other tangible things. 30 Unlike interrogatories, there is no limit to the amount of document requests that can be made. However, the requests should not be made “for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” 31 Responses, or where appropriate objections, must be made within 21 days or 28 days if the request for production of documents is served on a party along with the complaint. 32

1. Requests for Admission. A Request for Admission is a request for a party to admit the truth of an allegation. Va. R. Sup. Ct. 4:11. Requests for Admission are commonly used to establish the genuineness of documents. Obtaining an admission that a bank document or medical record is genuine avoids the need to have a custodian of records come to court to testify that the document is authentic. Other instances in which Requests for Admission can be useful in the divorce context include (1) requesting that a party admit he was fired from his job, 33 (2) requesting that a party admit he has additional income not reported on his tax return, and (3) requesting that a party admit she committed adultery. 34 There generally is no limit on the amount of requests for admission that can be asked regarding the genuineness of documents. 35 However, the Rules of the Supreme Court of Virginia impose a limit of 30 requests for matters not involving the genuineness of documents, except by agreement or good cause shown. 36 Responses, or where appropriate objections, must be made within 21 days or 28 days if the requests for admission is served on a party along with the complaint. 37

1. Subpoena Duces Tecum. A Subpoena Duces Tecum is a request for a non-party to the case to produce certain documents relevant to the litigation. 38 A subpoena duces tecum can only be filed with a court in connection with a pending case matter. 39 It cannot be issued prior to litigation. The party issuing the subpoena duces tecum gets to determine the deadline that a response is due; however, if the deadline is less than 14 days after service of the subpoena duces tecum, the person to whom it is directed may file an objection. 40 A subpoena duces tecum can be a helpful tool in obtaining records that a party to the case claims he or she does not have possession, custody, or control of, such as certain medical records, old bank documents, and a complete employee file. A subpoena duces tecum may not be sufficient on its own to obtain certain records. Additional requirements must be met to obtain substance abuse records and federal agency records, including obtaining a court order signed by a Judge. 41

1. Physical or Mental Examinations. When a party’s mental or physical condition is in controversy, a physical or mental examination may be requested. 42 Physical examinations may be helpful when the opposing party complains that a disability is preventing him from working or from working full time. Mental examinations are often used when child custody is at issue and a party suffers from a mental health condition that puts their parental fitness in question.

1. Vocational Evaluations. In cases where a party is voluntarily unemployed or underemployed or the party’s earning capacity is at issue, courts have the power to order a party to undergo an evaluation with a vocational rehabilitation expert. 43 The evaluator looks at the party’s past employment history and qualifications and the availability of jobs to determine a party’s earning capacity. In child support and spousal support cases, a vocational evaluation can be used to impute income to a party. 44

1. Depositions. A deposition is a discovery tool that allows parties to obtain testimony under oath from the other party or a third-party witness prior to trial. Depositions are typically conducted at a law office outside the presence of a judge. Witnesses must answer questions under oath similar to how they might be asked questions at the trial. Objections to the questions can be raised but witnesses generally must answer the questions over objections unless privileged information is sought. 45 Depositions typically are utilized after Interrogatories, Request for Production of Documents, and Requests for Admission are served. They allow for better preparation for trial since answers are provided ahead of time for many of the same questions that will be asked at trial. If a witness changes his testimony at trial, the transcript of the deposition can be used to attack the witness’s credibility. 46 In certain instances, such as the witness’s death, the witness’s location outside of Virginia or more than 100 miles from the courthouse, or the witness’s status as a medical treatment provider, the deposition testimony of a witness may be used in lieu of a live appearance by the witness at trial. 47 Depositions can take many hours and sometimes days, which can result in a high cost to the parties. Thus, the value of the deposition must be weighed against its cost after taking into consideration the needs of the case and the amount at stake.

1. Objections to Discovery. If a discovery question is objectionable, an objection may be raised in lieu of an answer. The reasons for the objection must be stated. 48 The scope of discovery in a divorce case “extends only to matters which are relevant to the issues in the proceeding and which are not privileged….” 49 Common objections include that (1) the discovery sought is protected by the attorney-client privilege or work product doctrine (2) the discovery sought seeks information outside the scope of permissible discovery (3) the discovery sought is unduly burdensome or expensive, and (4) the discovery is obtainable from some other source that is more convenient, less burdensome, or expensive. 50 Witness statements and the substance of any facts learned through oral statements of lay witnesses prepared in anticipation of litigation are protected work product. 51 Thus, a question that seeks a summary of lay witness testimony may be objected to as seeking information protected by the work product doctrine. If a privilege or protection is asserted, the nature of the documents, communications or things not produced must be disclosed in a manner that enables the other party to assess the applicability of the privilege without revealing the privileged information itself. 52 Discovery that asks for five years of utility bills is an example of a request that is unduly burdensome and outside the scope of permissible discovery as being overly broad. Discovery that asks for the production of joint bank account statements would be an example of discovery that “is obtainable from some other source that is more convenient” since the requesting party can access the statements on her own.

1. Failure to Answer Discovery. If a party fails to answer discovery or provides incomplete answers, a motion to compel discovery can be filed and an award of attorney’s fee can be made. At a motion to compel hearing, the court can order the non-complying party to answer discovery. If the party fails to comply with the order, a motion for sanctions can be filed. As part of a sanctions hearing, or in some instances as part of a hearing on a motion to compel, 53 the court can issue sanctions against the non-complying party in addition to attorney’s fees, including ordering that certain facts are established without further proof, dismissing the noncomplying party’s case (in exceptional circumstances) 54 and/or treating the noncompliance as contempt of court. 55

1. Supplementation of Discovery. Discovery is often done at the outset of a case. If the trial is scheduled many months after discovery is completed, the information discovered may no longer be current. Generally, the trial court must value assets as of the date of the evidentiary hearing. 56 Having old asset values could pose an issue at the time of trial. Thus, a need often exists to obtain supplemental discovery near the time of trial. The Rules of the Supreme Court of Virginia require parties to supplement or amend any prior answers that (1) pertain to the identity and location of persons having knowledge of discoverable matters and the identify of expert witnesses and the subject matter and substance of the expert’s testimony and (2) are materially incomplete or incorrect and “the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” 57 No other supplementation is required under the Rules of the Supreme Court of Virginia; however, parties can agree to supplement discovery, and a request can be made for the court to order it. 58 Some courts, such as the Suffolk Circuit Court, include a provision regarding supplementation of financial information and documents in their form pretrial scheduling orders. In the absence of an order or agreement, an interrogatory can be issued within a few months of the trial asking the opposing party to identify any changes to his answers, and requests for production of documents can be reissued with an updated time period included. Supplementation of discovery is usually a good idea even if it is not required. If a party attempts to use new information or documents not produced in discovery, an objection or motion in limine can be made to bar their use.

Pendente Lite Hearing

The court process for a divorce can take many months or even longer than a year in some instances. However, some issues can be decided on a temporary basis prior to the trial. A motion for temporary (pendente lite) relief can be filed at the outset of the case; however, some degree of discovery is often desired prior to having a pendente lite hearing, especially when support is requested and income information has not been voluntarily shared. Court decisions made at the pendente lite hearing only last until the final divorce order is made. A different order can be made as part of the court’s final ruling at the divorce trial. In the case of a support order, the final court order can be applied retroactively, which can result in the overpayment of support or a support arrearage. 59 For instance, if a court awarded $1000 a month in spousal support at the time of the pendente lite hearing and then changed the award at the time of trial to $500 a month dating back to the pendente lite hearing, the person paying support would have overpaid support by $500 each month during the case and would be entitled to be paid back for the overpayment.

The pendente lite hearing is not meant to be a full trial. Courts in the Hampton Roads area typically only permit between 30 minutes to two hours for the pendente lite hearing. This means that there is not enough time to put forth all relevant evidence and witnesses, and if the motion is argued at the beginning of the case, the evidence likely has not yet been developed through the discovery process. The purpose of the pendente lite hearing is to preserve the status quo of the parties until the divorce if finalized. 60 It does not determine the rights of parties to property. The pendente lite order is not final and cannot be appealed. 61 Virginia Code § 20-103 provides the authority to make temporary orders, and allows courts to do the following:

• award temporary child custody and/or visitation,

• award temporary child support and/or spousal support;

• order a party to cover health insurance for the other spouse and/or minor children;

• require that a party pay secured or unsecured debts incurred jointly or by either party (e.g. mortgage payments, car payments, household bills, etc.).

• order that a party pay preliminary counsel fees to enable the other spouse to carry on the lawsuit;

• order that neither spouse may impose any restraint on the personal liberty of the other spouse;

• grant one spouse exclusive use and possession of the marital residence during the pendency of the case;

• order that either or both parties preserve their assets so that they are available at the time the court makes its orders related to the division of property and support;

• order that either or both parties give security to ensure compliance with the court’s orders;

• compel a party to maintain an existing life insurance party insuring either party’s life or requiring a party to name the other party as the beneficiary of the policy or an appropriate person for the benefit of the minor children and to allocate the premium cost of the life insurance policy provided that all premiums are billed to the policyholder.

Designation of Experts

Experts are commonly used to assist judges in understanding complex issues that a layperson does not have the specialized knowledge needed to express reliable opinions about. Examples include the use a of a real estate appraiser to attest to the fair market value of the marital residence, a vocational rehabilitation expert to discuss a party’s earning potential in a spousal support case, a clinical psychologist to testify about a party’s mental health or parental fitness in a custody dispute, a forensic accountant to analyze complex financial records to determine a person’s income and property holdings and trace transfers of marital and separate property, and a certified valuation analyst to testify about the fair market value of a business. If the judge has issued a scheduling order, the scheduling order likely will require the parties to disclose the experts they intend to use at trial ahead of time, typically 60-90 days prior to trial.

Judicial Settlement Conference

Many courts in Virginia, including several courts in the Hampton Roads area, require that the parties participate in a Judicial Settlement Conference before the case is allowed to proceed to trial. The Judicial Settlement Conference is a form of mediation. A retired judge not affiliated with the case assists the parties in reaching a settlement agreement. There is no fee imposed on the parties for the use of the retired Judge. If the parties prefer, they can hire a private mediator at their own cost and ask the court to waive their participation in the Judicial Settlement Conference. For additional details see https://www.vacourts.gov/courtadmin/aoc/djs/programs/jsc/home.html.

Disclosure of Witnesses and Exhibits

Many Virginia courts will issue a scheduling order that lists actions that must be taken by the parties by certain dates. Under a typical scheduling order, the parties must identify all witnesses and exhibits they intend to use at trial within 15 days of the trial.

Pretrial Motions

Certain motions can be made and argued prior to trial. These include a motion in limine, a motion for alternate valuation date, a motion to bifurcate the trial, and a motion to continue the trial.

1. Motion in Limine. A motion in limine is used to obtain a pretrial ruling regarding the admissibility of evidence. 62 Typically, it is used to exclude experts from testifying that were not properly identified.

1. Motion for Alternate Valuation Date. Assets are typically valued as of the date of the trial; however, sometimes using the current value of an asset is inappropriate. For instance, it could be unfair to use the current value of a 401(k) account if one of the parties improperly withdrew a portion of the account after their separation. Virginia Code § 20-107.3(A) gives courts discretion to use a different valuation date; however, a motion must be made at least 21 days prior to the trial.

1. Motion to Bifurcate the Divorce from the other Issues in the Case. Typically, a divorce is not considered final for appeals purposes if the final decree reserves a decision on issues such as the equitable distribution of property, support, and attorney’s fees for a later date. 63 However, a motion can be made to finalize the issue of divorce and decide the other issues later when it is “clearly necessary” to do so. When such action is “clearly necessary” is not stated in Virginia Code § 20-107.3(A) or clearly proscribed in case law; however, relevant factors may include “advanced age, hospitalization, the fear of imminent death, or competency issues.” 64

1. Motion to Continue the Trial. A motion can be made to continue the trial for good cause shown. 65 What constitutes “good cause” is not listed in the rules, but lack of preparation is generally not a good excuse. Some courts and judges seem to grant continuances liberally whereas others look for a strong reason outside of a person’s control. If an important witness fails to appear in court after being served with a subpoena sufficiently ahead of time, this will likely constitute good cause for a continuance. Courts are afforded a great deal of discretion in determining whether to grant or deny a continuance, so it can be hard to predict ahead of time how a judge will rule on the issue. 66

Pretrial Conference

Many Virginia courts require that a pretrial conference be scheduled for a contested divorce case within a few weeks of the trial. The purpose of the pretrial conference is to discuss the issues that will be addressed at trial, whether any stipulations of facts or documents have been reached that can eliminate the need for formal proof and help streamline the trial (including an agreement on the value of assets), who will be responsible for having a court reporter to transcribe the proceeding, and the necessity for any pretrial amendment of pleadings, or other pretrial relief. 67 Around the time of the pretrial conference, the parties may be required to submit certain disclosures, such as child support guidelines under Virginia Code § 20-108.2, income and expense statements in spousal support cases, proffers of facts related to the statutory factors used in determining the best interests of children in custody and visitation disputes under Virginia Code § 20-124.3, the division of marital assets and liabilities under Virginia Code § 20-107.3(E), and post-divorce spousal support under Virginia Code § 20-107.1.

Trial

The trial is the final court hearing in which a Judge hears evidence related to the grounds of divorce, the division of marital property and debts, and any other issues raised in the pleadings that are relevant to the divorce. The trial could be a single day or several days depending on the complexity of the case and the amount of evidence to be presented. Each side is given the chance to make an opening statement regarding the evidence that will be presented and the particular relief being requested pertaining to each issue. The plaintiff’s counsel gets to present evidence first through direct examination, which can take the form of witness testimony and documents (such as bank statements, tax returns, paystubs, retirement documents, etc.) Objections to any questions or documents should be raised contemporaneously to preserve the objections for appeal. 68 After each witness testifies, the defendant’s counsel gets the chance to ask the witness leading questions through a process called cross examination. Questions on cross-examination are limited to the scope of the direct examination, meaning that counsel cannot ask questions about topics that were not initially raised. 69 Cross-examination can expose inaccuracies in witness testimony, challenge the credibility of witnesses, and establish a desired narrative. The plaintiff then gets to ask follow up questions through a process called re-direct examination. After the plaintiff finishes his or her case, the defendant gets to put on evidence and the same process occurs. After the defendant concludes his or her case, the plaintiff has the opportunity to challenge the defendant’s case with new evidence through a process called rebuttal. Finally, each side is given the chance to make a closing argument on how the judge should rule on each issue based on the evidence presented. 70

In non-complex divorce cases with few issues, the judge may issue a ruling on the same day as the closing statements. For more complex cases, the judge may ask the parties to provide the court with a copy of the transcript taken by the court reporter. The judge then reviews the transcripts and issues an opinion letter describing his rulings. The parties can attempt to challenge the rulings through post-trial motions. A final decree of divorce is then prepared and signed by the judge. The final decree of divorce is the final order that grants the divorce and specifies how marital property and debts are divided, and if applicable, determines custody and visitation arrangements, payment of child and spousal support, and any approved reimbursement of attorney’s fees and costs. In general, the circuit court loses jurisdiction to make changes to the final decree of divorce after 21 days from the date the judge signs the final decree. 71 Thereafter, corrections can only be sought through a timely filed appeal unless a special exception exists. 72

Appeal

Once the final decree of divorce is entered by the circuit court, a party may file an appeal to the Court of Appeals of Virginia by filing a Notice of Appeal within 30 days of the date of entry of the final divorce decree 73 and abiding by the other requirements of Rule 5A:6 of the Rules of the Supreme Court of Virginia. 74 The Court of Appeals is not a trial court but is instead a reviewing authority. An appeal does afford an opportunity to put forth new witnesses and evidence at the appellate level. If the Court of Appeals determines that the trial court’s decision was plainly wrong or unsupported by the evidence or based on a mistake of law, it can reverse the trial court’s decision, and where necessary, send the matter back to the trial court for further proceedings. 75 The trial court’s findings are afforded great weight, and on appeal the evidence is considered in the light most favorable to the party prevailing in the trial court. 76 An appeal of a divorce case is rarely an easy endeavor. The cost of an appeal can be substantial and the party losing the appeal can be ordered to pay the other parties’ legal fees in addition to her own. 77 Thus, before going down the path of an appeal a party should seek the advice of an attorney experienced in handling appeals. If a party’s appeal to the Court of Appeals is unsuccessful, such party may file an appeal to the Supreme Court of Virginia within 30 days of the decision appealed from. 78 In some limited circumstances, an appeal can be heard by the Supreme Court of Virginia without first being decided by the Court of Appeals. 79 The Supreme Court of Virginia rejects the majority of the appeals that come to it. Appeals are rejected unless they have significant precedential value or involve a substantial constitutional question. 80

Step Five: Finalize the Divorce

The divorce process ends when the judge signs the final decree of divorce, the 21-day time period the judge has to change or cancel the divorce order ends, and no appeal is allowed. The final decree of divorce is a court order that officially terminates the marriage.

The following documents are filed with the court along with the final decree of divorce:

1. Confidential Addendum. The final decree of divorce must state each party’s social security number or control number issued by the Department of Motor Vehicles. 81 If social security numbers are listed, they must be stated on a confidential addendum. 82 Identifying account numbers for financial records also must be listed in a confidential addendum. 83

1. Separation Agreement (if applicable). The terms of the agreement are incorporated into the final decree of divorce.

1. Affidavit of the Moving Party(if applicable). If a separation agreement is presented along with the final decree of divorce and no issue needs to be determined except for the granting of a no-fault divorce, or the opposing party has been personally served with the complaint and has failed to timely respond or appear in the case as required by law, a court hearing is not required for the granting of the divorce. Instead, an affidavit can be filed with the court that supplies written testimony regarding the no-fault ground of divorce. The affidavit must be signed by the party requesting the divorce and must state, among other things, that the parties have lived separate and apart continuously, without interruption and without cohabitation for the period of time required by law (either one year or six months depending on the circumstances). 84

1. Name Change Order (if applicable and desired). At the time of divorce, a party may ask the court to change the party’s married name back to a maiden name or former name by a separate name change order that complies with Virginia Code § 8.01-217. 85 A separate filing fee is required, and the name change order typically goes into effect at the time the divorce is granted. A party may also request a name change prior to the finalization of the divorce. In such case, a special application must be made under oath that complies with Virginia Code § 8.01-217. Some courts, such as the Virginia Beach Circuit Court, may require this application to be filed even if the request is for a change back to a maiden name at the time of divorce. 86

1. VS-4 State Statistical Form. The VS-4 form is a report of divorce or annulment that is required for state statistical purposes. 87 It must be completed in black ink and filed at the time of the entry of the final decree of divorce. 88 It is sent by the clerk’s office to the Department of Health-Division of Vital Records in Richmond, Virginia by the 10 th day of the month following the date the final decree of divorce is granted. 89

Before getting remarried, parties should make sure they are divorced! As explained above, the divorce is not final until a judge signs the final decree of divorce and the 21-day time period the judge has to make changes passes. If an appeal is properly filed within the time limit (normally 30 days), the divorce is not final. In light of this, it is hard to imagine a situation where it would be wise to get remarried right away rather than wait more than 30 days after the date the judge signs the final decree of divorce. If objections are filed to the final decree of divorce and a bond is given pausing the enforcement of the decree, the trial court is required to enter an order prohibiting the parties from getting remarried pending the potential appeal of the case. 90

The consequences of getting remarried prior to the true finalization of a divorce can be disastrous. For one, getting remarried while still technically married to a living spouse is a criminal offense in Virginia punishable as a Class 4 felony. 91 A Class 4 felony may be punished by a prison sentence of 2-10 years and fine of up to $100,000. 92 Second, a bigamous marriage is considered absolutely void. 93 This means Virginia treats the marriage as not existing. No marital rights are acquired. 94 Individuals who think they are going to be entitled to spousal support and the equitable division of their partner’s retirement plan may be shocked to learn that they are entitled to nothing.

Summary of the Divorce Timeline

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Jordan A. Fanney, Esq. is an experienced Virginia Beach divorce and family law attorney who works for Poole Brooke Plumlee PC.
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References

1. SeeMorris v. Morris, 216 Va. 457, 459 (1975). ↩︎
2. See Va. Code § 20-155. ↩︎
3. Va. Code § 20-109.1; SeeShoup v. Shoup, 37 Va. App. 240, 251-52 (2001) and Matthews v. Brinckhaus, No. 1915-16-4, 2017 Va. App. LEXIS 181, at *5 (Ct. App. July 25, 2017), noting that child custody and visitation and child support orders are subject to the requirement that they be in the best interests of the children. ↩︎
4. Va. R. Sup. Ct. 5A:36. ↩︎
5. See Va. Code § 20-108.1; Weizenbaum v. Weizenbaum, 12 Va. App. 899, 904 (1991).↩︎
6. Va. Code § 20-103(A)(vii).↩︎
7. SeeCirrito v. Cirrito, 44 Va. App. 287, 300-02 (2004) and Dwoskin v. Dwoskin, No. CL-2019-3494, 2021 Va. Cir. LEXIS 40, at *6 (Cir. Ct. Mar. 5, 2021). ↩︎
8. A suit for a legal separation (divorce from bed and board) may be filed on the basis of cruelty or desertion and then can be later merged into an absolute divorce after one year from the date of cruelty or desertion without the granting of the legal separation so long as merger is requested in the complaint for divorce from bed and board. Va. Code § 20-121.2; Va. Code § 20-95; Va. Code § 20-91. ↩︎
9. See Reference 8. ↩︎
10. Va. Code § 8.01-328.1. ↩︎
11. Va. Code § 20-97; Blackson v. Blackson, 40 Va. App. 507, 579 (2003), discussing the difference between residence and domicile. ↩︎
12. See Va. Code §§ 8.01-316 through 8.01-319 for more details on service by publication. ↩︎
13. Cranford v. Hubbard, 208 Va. 689, 690 (1968).↩︎
14. Morris v. Morris, 4 Va. App. 539 (1987).↩︎
15. Va. Code § 20-99.1:1; form CC-1406 located at https://www.vacourts.gov/forms/circuit/cc1406.pdf↩︎
16. McCulley v. Brooks & Co. Gen. Contractors, Inc., 295 Va. 583, 589-90 (2018); Va. Code § 8.01-277.1. ↩︎
17. Va. R. Sup. Ct. 3:8.↩︎
18. Va. R. Sup Ct. 3:8(a). ↩︎
19. Monahan v. Obici Med. Mgmt. Servs., 271 Va. 621, 628 (2006). ↩︎
20. Breschel v. Breschel, 221 Va. 208 (1980).↩︎
21. Va. Code § 20-94; Petachenko v. Petachenko, 232 Va. 296 (1986). ↩︎
22. Va. Code § 20-94. ↩︎
23. Va. Code § 8.01-273.↩︎
24. See Demott v. Demott, 198 Va. 22 (1956). ↩︎
25. Va. Code § 8.01-277.1. An appearance made only to question the court’s jurisdiction is called a special appearance. Gilpin v. Joyce, 257 Va. 579 (1999); Blackson v. Blackson, 40 Va. App. 507, 579 (2003). ↩︎
26. Va. R. Sup. Ct. 3:9. ↩︎
27. Va. R. Sup. Ct. 4:8. ↩︎
28. Va. R. Sup. Ct. 4:8(g). ↩︎
29. Va. R. Sup. Ct. 4:8(d). ↩︎
30. Va. R. Sup. Ct. 4:9(a). ↩︎
31. Va. R. Sup. Ct. 4:1(g)(2). ↩︎
32. Va. R. Sup. Ct. 4:9(b)(ii). ↩︎
33. Such request can support a claim to impute income to the party under Virginia Code § 20-108.1(B)(3). ↩︎
34. This may result in the party invoking her 5th Amendment privilege against self-incrimination and refusing to answer, but under Virginia Code § 8.01-223.1, the Court is permitted to draw an adverse inference from such refusal. ↩︎
35. Va. R. Sup. Ct. 4:11(e)(2). ↩︎
36. Va. R. Sup. Ct. 4:11(e)(1). ↩︎
37. Va. R. Sup. Ct. 4:11(a). ↩︎
38. Va. R. Sup. Ct. 4:9A. ↩︎
39. Va. R. Sup. Ct. 4:9A(a)(1-2). ↩︎
40. Va. Code § 16.1-89. ↩︎
41. See42 CFR section 2.61-2.64 and https://www.archives.gov/files/personnel-records-center/na-13027-court-order-requirements.pdf↩︎
42. Va. R. Sup. Ct. 4:10. ↩︎
43. Va. Code § 20-108.1(H). ↩︎
44. Va. Code § 20-108.1(B)(3). ↩︎
45. Va. R. Sup. Ct. 4:5(c)(2). ↩︎
46. Va. R. Sup. Ct. 4:7(a)(2). ↩︎
47. Va. R. Sup. Ct. 4:7(a)(3) and 4:7(a)(4); Depositions used for trial testimony as opposed to discovery are called de bene esse depositions. ↩︎
48. Va. R. Sup. Ct. 4:8(d); Va. R. Sup. Ct. 4:9 (b)(ii); Va. R. Sup. Ct. 4:11(a). ↩︎
49. Va. R. Sup. Ct. 4:1(b)(5). ↩︎
50. Va. R. Sup. Ct. 4:1(b)(1). ↩︎
51. See Hickman v. Taylor, 329 U.S. 495, 511 (1947), cited with approval by the Virginia Supreme Court in Commonwealth v. Edwards, 235 Va. 499, 510, (1988). See alsoRakes v. Fulcher, 210 Va. 542, 546, (1970). ↩︎
52. Va. R. Sup. Ct. 4:1(6)(i); the disclosure is called a privilege log. ↩︎
53. Va. R. Sup. Ct. 4:12(d). ↩︎
54. See Walsh v. Bennett, 260 Va. 171, 176 (2000), warning against the dangers of “short circuiting” litigation. ↩︎
55. Va. R. Sup. Ct. 4:12(b). ↩︎
56. Va. Code § 20-107.3(A). ↩︎
57. Va. R. Sup. Ct. 4:1(e)(1-2). ↩︎
58. Va. R. Sup. Ct. 4:1(e)(3). ↩︎
59. Everett v. Tawes, 298 Va. 25, 39, (2019), noting that although the Virginia Code is silent on the retroactive modification of pendente lite support orders, Code § 20-99 permits circuit courts to fill in statutory gaps when deciding divorce suits. ↩︎
60. Everett v. Tawes, 298 Va. 25, 34 (2019). ↩︎
61. Id.↩︎
62. Harward v. Commonwealth, 5 Va. App. 468, 474 (1988). Moore v. Moore, Record No. 0314-20-4 (Va. Ct. App. Oct. 27, 2020) citing Martin Martin, Inc. v. Bradley Enterprises, 256 Va. 288 (1998). ↩︎
63. Va. R. Sup. Ct. 1:1; Prizzia v. Prizzia, 45 Va. App. 280, 285 (2005). ↩︎
64. Friedman v. Smith, 68 Va. App. 529, 542 n.3 (2018), noting that there is no factor or combination of factors that provide justification as a matter of law for bifurcation under Code § 20-107.3(A). ↩︎
65. Va. R. Sup. Ct. 8:14. ↩︎
66. See Haugen v. Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27 (2007).↩︎
67. Va. R. Sup. Ct. 1:19.↩︎
68. See Va. R. Sup. Ct. 5:25 and Va. R. Sup. Ct. 5A:18. ↩︎
69. Va. R. Sup. Ct. 2:611(b)(i). ↩︎
70. The order of proof at a trial usually proceeds as discussed in this article; however, the court has discretion in determining the “mode and order of interrogating witnesses and presenting evidence.” Va. Sup. Ct. R. 2:611. ↩︎
71. Va. R. Sup. Ct. 1:1(a). ↩︎
72. Rook v. Rook, 233 Va. 92, 94, (1987); Va. Code § 8.01-428. ↩︎
73. The filing deadline can be extended beyond 30 days if an extension is granted under Rule 5A:3(a). ↩︎
74. Va. Code § 8.01-675.3; Va. Code § 17.1-403. ↩︎
75. Floyd v. Floyd, 17 Va. App. 222, 224 (1993); Everett v. Tawes, 298 Va. 25, 42, (2019). ↩︎
76. Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605 (1989). ↩︎
77. Va. R. Sup. Ct. 5A:30(b)(3)-(4); Friedman v. Smith, 68 Va. App. 529, 546 (2018), noting that the court considers the following factors when determining requests for appellate attorney’s fees and costs: “whether the requesting party prevailed, whether the appeal was frivolous, whether either party generated unnecessary expense or delay in pursuit of its interests, as well as ‘all the equities of the case.’” ↩︎
78. Va. Code § 8.01-671; Va. Code § 17.1-411. ↩︎
79. Va. Code § 17.1-409; Va. Code § 8.01-671. ↩︎
80. Sheets v. Castle, 263 Va. 407, 409 (2002). ↩︎
81. Va. Code § 20-91(B). ↩︎
82. Va. Code 20-121.03; form CC1426 located at https://www.vacourts.gov/forms/circuit/cc1426.pdf ↩︎
83. Id.↩︎
84. Va. Code § 20-106. ↩︎
85. Va. Code § 20-121.4↩︎
86. Seehttps://courts.virginiabeach.gov/circuit-court/procedures-for-civil-actions-name-changes-annulment-divorce-and-criminal-cases; https://s3.us-east-1.amazonaws.com/virginia-beach-departments-docs/courts/Court-Forms/Application-for-Adult-Name-Change.pdf↩︎
87. Va. Code § 32.1-268; 12 Va. Admin. Code § 5-550-140. ↩︎
88. 12 Va. Admin. Code § 5-550-150. ↩︎
89. Va. Code § 32.1-268(B). ↩︎
90. Va. Code § 20-118. ↩︎
91. Va. Code § 18.2-362. ↩︎
92. Va. Code § 18.2-10(d). ↩︎
93. Va. Code § 20-43. ↩︎
94. Kleinfield v. Veruki, 7 Va. App. 183, 190 (1988); see also Shoustari v. Zamani, 39 Va. App. 517, 520 n.1 (2002), noting that equitable estoppel cannot be used as a basis for an award of spousal support as only the General Assembly can create an independent ground for spousal support, and it has made no such provision. ↩︎

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