Do I have to go to Court for my Divorce?
A common question we receive is "Will I have to go to court as a part of getting a divorce? What if we're in agreement on everything?"
Well, in order to understand whether a court appearance will be necessary, you'll need to know a little bit about the process of filing for divorce in Virginia. The process begins with the filing of a Complaint, which is a document that lays out certain facts about the parties. Certain facts must be claimed in the Complaint in order for the divorce to go through. Once the court receives the Complaint, they will issue a Summons, which is a call for the other party to appear. In most uncontested cases, especially when there is a Separation Agreement in place, the other party will then sign a Waiver of Service, agreeing to the divorce and waiving the right to receive service or notice of future developments in the case, so long as none of the issues are changed. Once the waiver is signed, the final divorce document, called the Final Decree, is prepared. If the other party does not sign a waiver, he/she will have to be served by a process server and will have 21 days to file a response.
Up until July 2012, a hearing in court was mandatory in order to get the Final Decree approved, even in uncontested cases. At that hearing, the party that filed the case, and a witness, would have to testify to the relevant issues (i.e., date of separation, ages of the parties, whether there are children, etc.). As of July 1, 2012, the Norfolk Circuit Court has begun accepting this testimony by deposition, meaning the “hearing” can be done in an Attorney’s Office, rather than in open court, sworn to in front of a notary public, and submitted as a document. We file our divorces in Norfolk in order to take advantage of this option. However, if the other party does not sign the Waiver of Service mentioned above, there will still have to be a hearing in court.
Once the proper testimony is received and the court is convinced the grounds for a divorce exist, it will review the Final Decree. If it finds the Final Decree to be in proper form for the facts of that individual case, the court will enter the Final Decree, at which point the parties are officially divorced bound by the Decree’s terms. There is a 21-day modification period, and a 30-day period during which a party can appeal the final decree, so it is not advisable to re-marry during this period; otherwise, one could find themselves in the awkward situation of entering a new marriage and having the previous one reinstated.
If you, or someone you know, needs assistance in obtaining an uncontested divorce, contact Hampton Roads Legal Services for a free phone consultation at (757) 276-6555.