Divorce is often tricky and painful. Even if you have an uncontested divorce, you must complete a significant amount of legal paperwork before the case is over. You need a knowledgeable advocate who can help you make sure your final decree of divorce meets all of the requirements set by Virginia law. The experienced family law attorneys at Montagna Law are ready to assist you with any divorce matters you may encounter. Request a consultation with a member of our office by calling (757) 622-8100.
The final divorce decree is the final step in a divorce case. A divorce action is essentially a lawsuit between two spouses that begins when one spouse files a complaint for divorce. Uncontested divorces end fairly amicably, but each spouse in a contested divorce can make claims against the other spouse that the court must resolve.
In either case, the final decree of divorce is the court order that ends the marriage and brings the case to a close:
A final divorce decree must include a rather large amount of information, but this will be helpful in enforcing or modifying its provisions as time goes on. In general, a decree must state all of the terms of the divorce, including any and all agreements between the spouses and the court’s decision on all contested matters.
The divorce decree must include information establishing that one or both parties meet the residency requirements for a Virginia divorce. It must either state the grounds for the divorce or, if it is a no-fault divorce based on living separately for the legally-required period of time, include a statement to this effect. It must also state whether the court is granting a divorce from bed and board or a divorce a vinculo matrimonii (divorce from the bonds of matrimony). The latter type of divorce constitutes a final dissolution of the marriage, leaving both spouses free to remarry.
The decree must provide detailed information about major issues resolved by agreement or through a trial.
If the parties were able to resolve the case through negotiation or mediation, the decree should note that it is incorporating the terms of their separation agreement.
If one spouse (the “obligor”) will be paying spousal support to the other (the “obligee”), the final divorce decree must provide information about the parties’ agreement or the court’s order, including:
Virginia family law uses the “equitable distribution” method for property division. The goal is to split the property and debts fairly, not necessarily equally. The court must consider factors like the spouses’ ages, the length of the marriage, each spouse’s financial and non-financial contributions to acquiring and maintaining property and debts, and any fault-based grounds for the divorce.
The decree must identify the assets and debts as specifically as possible. It must describe how to divide them between the parties. For example, if the court awards a vehicle to one spouse, the divorce decree may serve as a court order compelling the other spouse to sign over the title. Some assets, such as retirement accounts, may require a separate order with very specific instructions on how to divide the benefits.
Dividing debts between the spouses is trickier since creditors are not subject to the court’s orders. The court cannot, for example, order a credit card company not to enforce a debt against a spouse if that spouse signed the credit contract. In this kind of situation, the decree may have to state that the spouse who will be responsible for the debt must indemnify the other spouse.
A separation agreement or judgment after a trial must address child custody and visitation rights. The final divorce decree must:
An order for child support will be similar to the final divorce decree’s provisions for spousal support. The decree must identify the obligor, state the amount of support owed, and provide a schedule for payment.
The code of Virginia allows name changes in divorce cases, such as if a wife wants to go back to her maiden name. It requires a separate order, however, so it cannot be part of the final decree of divorce.
You may be able to file a motion requesting modification of the decree on certain grounds, known as a motion to reconsider, within 21 days of the date the judge signed your decree. After that period of time has expired, you can still ask the court to modify various parts of the decree, but the process is more complicated.
You can file a motion to reconsider within 21 days of the signing of the decree on the grounds that the court, during the trial, did not properly consider part of your case.
A motion to reconsider within the 21-day window may also be possible if circumstances have significantly changed and part of the judgment is no longer viable.
If you believe the court made a substantial error in judgment, such as by exceeding its legal authority or misapplying Virginia law in a harmful way, you may file a motion to reconsider.
You can move for reconsideration of the divorce decree’s provisions on property distribution after the 21 days have passed, but only in limited circumstances, such as:
Either party of the divorce may file a motion to modify child custody, child support, or spousal support at any time after the court signs the divorce decree. They must show that a material change in circumstances has occurred and is likely to persist for some time, such as:
For disputes that arise regarding child custody or support, the court that issued your divorce decree may transfer your case to the juvenile and domestic relations district court for further proceedings.
The length of time needed for the process depends on the type of divorce. Uncontested divorces require you and your spouse to remain separated for one year, or six months if you have no children. After that, the case can take very little time if you are able to reach a separation agreement quickly. You might need a month or two to negotiate the settlement and prepare the paperwork, followed by a few weeks for the court to process everything.
A contested divorce could take much longer. You may need to gather evidence and prepare for court hearings. Scheduling court dates can take months or longer because of crowded dockets and the generally slow pace of the judicial system.
You can request a copy of your decree by mail from the circuit court clerk’s office. The clerk does not charge a service fee for your first copy. After that, some courts, like the Fairfax Circuit Court, will charge $3.00 for each certified copy, payable by check or money order.
Uncontested divorce cases are relatively straightforward, once you and your spouse reach an agreement. In the state of Virginia, parties with no minor children must have a written separation agreement and be separated for 6 months prior to initiating a divorce case. If the parties have minor children, they must observe a separation period of 1 year prior to filing a divorce case.
The only no-fault grounds for divorce in Virginia is separation which entails a physical separation of both parties. Once the parties physically separate with the intent to permanently remain separated, the criteria have been met.
The procedure for obtaining a divorce is dependent upon whether or not the parties have a written separation agreement. If everything is resolved including property division, debt division, and all custody and support issues, an affidavit divorce may be the fastest way to finalize the case. If some or all of the issues are not resolved, the court will need to schedule a contested hearing.
The divorce lawyers at Montagna Law have years of experience representing people in divorces and other family law matters in the Hampton Roads area, including Virginia Beach, Norfolk, Chesapeake, Portsmouth, and Suffolk. We will provide you with legal advice and representation tailored to your needs for an uncontested or contested divorce case. Request a consultation with a member of our office by calling (757) 622-8100 or completing the online contact form today.
*The consult fee is $50 for up to ½ hr phone consults and $100 for up to 1 hr in-person consults. These consult fees are then applied to the retainer if the client retains us within 30 days of the initial consult.