Can You File for Divorce in Virginia if Your Spouse Refuses?
By Kevin Owen
While divorce is typically an emotionally difficult process, the complexity and frustration of a divorce case is compounded when your spouse is uncooperative. Your spouse's refusal to agree to an uncontested divorce can exacerbate the legal process into a lengthy and costly adversarial case. However, Virginia law allows for a divorce even though your spouse refuses to consent.
Immediate Grounds for Divorce
Virginia law provides two categories of reasons for divorce: grounds that permit an immediate divorce and grounds that require a waiting period. You may be granted an immediate divorce if you are able to prove that your spouse engaged in adultery, sodomy or buggery, or was sentenced to prison for more than one year for committing a felony. Although these are considered "immediate" grounds for divorce, your spouse could still delay the divorce process by contesting your allegations of misconduct. This would likely require you to engage in a protracted legal process involving discovery, such as depositions and interrogatories, as well as a trial in court. However, if you establish your allegations of misconduct, the court will issue a final divorce decree granting the divorce without requiring you to undergo a waiting period.
If you are unable to prove any grounds for an immediate divorce, you may still obtain a divorce despite your spouse's refusal to cooperate, but must satisfy a one-year waiting period. To establish grounds for divorce with a waiting period, you must establish that your spouse either was physically cruel or deserted you without a good reason or forced you to leave. You may also be granted a "no-fault" divorce without having to prove spousal misconduct if you have not lived with your spouse and have not engaged in sexual activity with him for at least one year.
Refusal to Settle
Your spouse's lack of cooperation in the divorce can extend beyond contesting the reasons for the divorce; for example, she can also refuse to negotiate a property and child custody agreement. Virginia law permits parties to a divorce to agree to the terms of the distribution of marital property, alimony and child custody. However, if your spouse refuses to negotiate a settlement, these issues must be decided by the court after holding a hearing.
An adversarial spouse can prolong and frustrate the processing of the divorce case itself by being uncooperative. To initiate a divorce, you must file a complaint with the court stating your grounds for divorce and the type of relief you want the court to grant. You must then serve the complaint along with a summons upon your spouse. Since your spouse's deadline to respond to the divorce action does not start until you effectively serve the complaint, he can prolong the divorce case by evading service of process. However, after he is served, he must file an answer to the complaint with the court within 21 days.
Once your spouse answers the complaint, the court schedules various hearings and establishes discovery procedures before a trial is held in the case. Depending on where you live in Virginia, the court may first hold a hearing to establish temporary orders for child support, custody, alimony and any other marital issues during the divorce proceedings. After this initial hearing, you and your spouse may conduct discovery, including taking deposition testimony, obtaining records and subpoenaing witnesses. If your spouse contests your grounds for divorce or issues related to property, alimony, child custody or support, your case may then be assigned to a Commissioner in Chancery to conduct a fact-finding inquiry and issue a report to the judge assigned to your case. After discovery is closed, you or your spouse may request a trial over any remaining disputed issues. In Virginia, courts generally schedule a trial within six to eight months after discovery ends.
- Legal Services of Northern Virginia: Divorce in Virginia
- Virginia Legal Aid Society: Divorce and Separation
- Fairfax County Government: Basic Virginia Divorce Procedures
- John W. Lee, P.C.:Virginia Contested Divorce
- The Maddox Law Firm: Virginia Divorce FAQ's
- Fairfax County Courthouse: Pro Se Divorce Package
- Livesay and Myers, P.C.: Changes To Notice Requirements In Virginia Divorce Cases – July 2012
Kevin Owen has been a professional writer since 2005. He served as an editor for the American Bar Association's "Administrative Law Review." Owen is an employment litigator in the Washington D.C. metropolitan area and practices before various state and federal trial and appellate courts. He earned his Juris Doctor from American University.