How is visitation determined in Virginia

A question that often comes across from potential clients and existing clients is how is child visitation determined in Virginia. While the direct answer may be easy and rather straight forward, the application of that answer regarding Virginia child visitation laws is not as simplistic. As always, please remember that this is not intended to replace competent legal advice. If you would like to speak with us, feel free to call us or text us at 757-454-2110 or fill out a Free Consultation Request form. If you would like to someone else, we understand completely but please make sure that the attorney knows about child visitation laws in Virginia.

There are some important underlying issues that need to be mentioned up front. First is the definitional section. The way that the Code defines words and phrases is important as that is what the Court is to follow. Virginia Code 20.124.1 is the definitional section and you can read it here. The Section that gives the Court the authority to enter these Order is in Virginia Code 20-124.2 and you can read it here.

So, let’s start with trying to answer the question. Child visitation determinations are initially governed by the Code of Virginia. The applicable statute is Virginia Code Section 20-124.3. Here is the link to that Code Section in case you would like to read it.

This statute gives the Court ten (10) factors to consider regarding child custody and visitation. They are as follows:

1. The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs;

2. The age and physical and mental condition of each parent;

3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual, and physical needs of the child;

4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers, and extended family members;

5. The role that each parent has played and will play in the future, in the upbringing and care of the child;

6. The propensity of each parent to actively support the child's contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;

7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;

8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age, and experience to express such a preference;

9. Any history of (i) family abuse as that term is defined in § 16.1-228; (ii) sexual abuse; (iii) child abuse; or (iv) an act of violence, force, or threat as defined in § 19.2-152.7:1 that occurred no earlier than 10 years prior to the date a petition is filed. If the court finds such a history or act, the court may disregard the factors in subdivision 6; and

10. Such other factors as the court deems necessary and proper to the determination.

That’s it. Seems simple doesn’t it? Unfortunately, Virginia child visitation laws were not written for the general public to be able to simply understand. We cannot break it down in “plain English” in a simple post and we do apologize for that, however, as you can see it really is not that simple.

So the starting point for child visitation determinations in Virginia is this Code section. The law says that the Court has to consider these factors and relate to the parties the basis of the decision. What has to happen for you is that your attorney needs to make sure that you understand these factors and apply the facts of your particular situation towards these child visitation laws.

In other words, each case is different. There is no “one size fits all” when it comes to child visitation in Virginia. What we like to tell our clients is to think of your case as a puzzle – each fact is a particular piece of that puzzle. Some facts are edges or corner pieces meaning they are important to get established first to set the stage for the child visitation case. Other facts are important towards the whole, however, they may be pieces of blue sky or fluffy clouds – they are necessary to finish the puzzle, however, they are not the foundation points of the case. Now some attorneys and even judges try to put cases in a “track” to treat child visitation cases the same despite the specific facts of the situation. This is not right and we hope that you are not treated that way.

Going back, we said that the statute we listed was a start in determining child visitation in Virginia. We also said that all cases of child visitation are different and no two are the same. So what is the next step if the statute is first? Case law. By this we mean looking at prior cases deciding child visitation. This can be cases decided by the Circuit Courts, the Court of Appeals, or the Virginia Supreme Court. These cases create what we call precedent and give everyone guidance on the interpretation of the laws in Virginia. It helps judges, attorneys and even parents know what is important, what is the law, and how to present a case. So, again, even though we gave you the statute above there is still more story and the law is not as simple as the statute.

Lastly, the overwhelming majority of child visitation cases in Virginia are heard in the Juvenile & Domestic Relations Courts in Virginia. These are considered courts “not of record” meaning that there is no reported case opinions out there to help guide you in these Courts. That is why it is important, if you are going to hire an attorney, to hire one that is familiar with how the Court you are in handles cases. Each Court, each judge is different. What one Court deems important may not be important to another Court – even in the same courthouse. Predictability is a compliment to pay a Court and that is where the saying “the best lawyers know the judge” comes into play. An experienced child visitation lawyer should be able to give you an idea of how your Court will probably handle your case. No one can tell you exactly what is going to happen and any lawyer that guarantees you what will happen is probably telling you what you want to hear to get your money. At that point we would suggest getting a second opinion – not necessarily hiring another attorney but just double checking. An attorney that is looking out for your best interests should not mind you getting a second opinion.

If you would like to read some of the Code of Virginia regarding visitation, here are some links that can lead you in the right direction:

Virginia Code Section 20-124.3: Best interests of the child; visitation

Virginia Code Section 20-124.1: Definitions

Virginia Code Section 20-124.2: Court-ordered custody and visitation arrangements

Hopefully this post has been helpful in providing you with some guidance on how child visitation is determined or decided in Virginia. If nothing else, we hope that it provides some framework if you have a consultation with an attorney.

Again, remember that this is not intended to replace competent legal advice. If you would like to speak with us, feel free to call us or text us at 757-454-2110 or fill out a Free Consultation Request form. As always, we offer free initial consultations with an attorney.

Do not forget to scroll to the bottom as there may be related posts that answer other questions that you have or did not think of at when you found this post. Thank you for reading this and I appreciate your time.

Broken Heart Family

Quite frequently, people contact our office and ask us is a separation agreement required in Virginia? We are happy to answer them with the simplest answer there is – no. So no, a separation agreement is not required in Virginia. A separation agreement is not required for parties to be separated in Virginia. A separation agreement is not required for the parties to get a divorce in the courts of Virginia. So why should someone have a separation agreement or what is the benefit of a separation agreement in Virginia? Let me explain.

To explain it, we must first define a separation agreement. A separation agreement also known as a Stipulation and Property Settlement Agreement is a contract for the end of your marriage. Pretty dramatic word choice but it is true. When couples get divorced, either they can take control of everything or they can let someone who knows absolutely nothing about you or your family and is obligated to follow the law not what is necessarily best for your family, a judge, make the decision. By creating a separation agreement, Virginia divorce courts almost always follow the agreement made between the parties. There are some exceptions but I will save that for another post.

So now that you have a general overview you might be asking “well, what exactly is a separation agreement?”. This is a fair question. The separation agreement is a detailed document that often covers everything from assets, bank accounts, retirement, personal property, debts, spousal support, and custody and visitation of children. These separation agreements can also include health insurance, social security benefits, claiming of any child dependency credits, as well as almost anything else that you can think of including. Separation agreements tend to be overinclusive meaning you try to leave nothing to chance or for someone else to decide. There are also provisions in there to hold a person accountable if the agreement is not followed or someone files bankruptcy. Again – a separation agreement should leave nothing to chance.

So the question that drew you to this post is whether a separation agreement is required in Virginia. Again, the answer is no – a separation agreement is not required in Virginia to get a divorce. An oversimplification that might be easy to understand is this:

There are two types of divorces in Virginia – contested and uncontested. The easiest way to state the difference between the two is whether there is a written separation agreement (again also known as a Stipulation or Property Settlement Agreement) that addresses everything and the Court does not have to decide anything. As the parties have worked everything out it is an uncontested divorce. The Complaint is filed along with some other papers, there are a couple of additional filings, and it is all sent to the Court for the Judge to sign. This is where the settlement agreement comes into play – the Court knows from the moment the case is filed that there is nothing to argue about or for it to decide.

A contested divorce is one where there is no written separation agreement, an incomplete written separation agreement, or a separation agreement where one person wants to change the terms of child custody, child visitation or child support. Again, this is an oversimplification as there could be other issues that the parties could require help with from the Courts.

So do you have to have written separation agreement to have an uncontested divorce? No but it sure helps. A Complaint for divorce can be filed with the Circuit Court and if both parties sign the Final Decree of Divorce then, usually, the Court will enter that Decree and the divorce is granted. Now there are some steps in between but I hope that you did not think that this post was a “do it yourself” turorial on how to do your own divorce. This post is not even designed to give you specific legal advice. Each case is different and what may work for one case may not work for other cases. This is why we offer free initial consultations with a lawyer – so you can get fact specific advice to your case.

Now you are probably asking yourelf (or want to ask me) – if I don’t have to have a separation agreement in Virignia why should I get one. Three simple reasons (and I will save the best for last). First, you and your spouse are controlling all aspects of your divorce. How you live your life, your finances, and even parenting your children is controlled by you as opposed to two or three lawyers and a judge. Ist this good enough reason? If not, then the second reason should help. Second, it is quicker for you to get divorced. The Court knows from the moment that the divorce case is filed that it is uncontested. This means that it is a matter of pushing paperwork through the Court. No hearings, no motions, no settlement conferences. It makes everyone’s lives easier. Now the final reason may be the most attractive of all. The third reason that you should have a separation agreement in Virginia is that it saves you money! Yes – without having to pay lawyer fees, court reporter fees, and process server fees you save a substantial amount of money. Admittedly, there is a cost to a good and thorough separation agreement, however, that pales in comparison to the cost of a contested divorce.

Now that you know about whether a separation agreement is required in Virginia, you may have another question about whether you can write your own separation agreement. If so, please read this Blog post. If you would like to learn some of the benefits of having a separation agreement in Virginia, this Blog post should help.

I hope that this answers some of your questions at least regarding whether a separation agreement is required in Virginia or at least gives you a good starting point. You can always visit our Separation Agreement page by clicking on this link. If you have more questions or want to discuss your options, you can either call or text us at 757-454-2110. We also have on our site an online consultation form. Again, our initial consultation with a lawyer about your case is free so it costs you nothing to call and ask your questions.

Separation Agreement Virginia

When discussing a separation agreement with a client or potential client the question usually comes up as to what the benefits are to having a separation agreement. This can be a lengthy answer and, sometimes, fact specific to each case. In this post I will try to hit some of the highlights or benefits that apply to almost everyone. Again, this is not meant to be an all-inclusive list and does not account for the specifics of any one case. If you have questions about your matter, I always suggest that you consult with competent attorney.

Before I begin, I want to define what a separation agreement in Virginia actually is so that we are on the same page. Admittedly, this is very similar to the description that I have used in other posts, however, I wanted to remain consistent. If you have read these posts feel free to skip this paragraph unless you want to refresh your memory about separation agreements in Virginia. If you have read other posts this may redundant and you can feel free to skip to the next section. A separation agreement also known as a Stipulation and Property Settlement Agreement is a contract for the end of your marriage. Pretty dramatic word choice but it is true. When couples get divorced, either they can talk control of everything or they can let someone who knows absolutely nothing about you or your family and is obligated to follow the law not what is necessarily best for your family, a judge, make the decision. By creating a separation agreement, Virginia divorce courts almost always follow the agreement made between the parties.

So when discussing the benefits of a separation agreement in Virginia we have to start with the biggest and most prominent benefit – control. Think about this for a moment, a divorce affects the most intimate aspects of your life. A judge can decide who lives in the marital home, who pays debts, how much support is paid, and even your ability to see or parent your children. Remember that the judge is the least informed person in any trial as the Court only gets to hear information provided by witnesses. Additionally, a judge is bound by the rules of evidence, civil procedure, and the laws applicable to your case. Lastly, a judge is human who comes to the case with their own opinion as to how things should occur or what should happen. By writing a separation agreement, the couple takes control away from the judge and puts it in their own hands. Control – of your finances, your living situation, your retirement, your children, and so much more.

Along those same lines, another benefit of a separation agreement in Virginia is that it establishes the rights as well as the obligations of each spouse. It determines, in an oversimplification, who is going to do what after the separation and the divorce. There should be no question, no ambiguity, no issue at all as to what each party gets and for what they are responsible. By doing this, if there are issues then there is a contract that can be enforced forcing a party to act or holding them accountable for failure to act. As part of the benefits of a separation agreement, there will be no “grey area” or question about individual responsibilities.

Another benefit of a separation agreement in Virginia is that it resolves any and all outstanding issues. Now, admittedly, this is a blanket statement and there can be exceptions if the couple does a partial separation agreement but generally speaking a separation agreement in Virginia tends to cover all issues. Again, nothing is left to a judge’s determination and the rights as well as the responsibilities of the parties is clear. If everything has been agreed to in a written separation agreement, the Virginia courts will routinely enter the divorce.

Yet another benefit of a separation agreement is that it allows the parties to agree to something that the Court cannot Order the parties to do. A judge’s authority is not unlimited. There are things that the Court can and cannot order. For example, absent medical incapacity a child support obligation ends at either eighteen or, if still in high school, nineteen or high school graduation whatever comes first. In a separation agreement, the parties can agree to a further date for child support to end – example, after graduation from college. Another example is the expense of college. A Court does not have the ability to Order that the either of the parties pay or contribute to college. This is often referred to as a moral obligation not a legal one. In a separation agreement, the parties can agree on college expenses. Two more examples are pre-college educational expenses or extra-curricular activities. If a child is going to private school or plays a travel sport, the Court cannot order either of the parties to pay for these expenses. However, one of the benefits of a separation agreement in Virginia is that the parties can agree to those costs and expenses.

Sometimes the parties can only work out some of their issues and not all of them. In this case, the parties can agree to a partial separation agreement to cover just those issues. Somes of the benefits are all of the above stated benefits. Another benefit is that it will reduce time and expense as some of the issues have been resolved. Lastly, perhaps the parties need more information or would like some time before agreeing on everything. Again, another benefit of a separation agreement or a partial separation agreement in Virginia.

Believe it or not, establishing a date of separation can prove to be troublesome. Even this seemingly simple matter can sometimes prove to be quite difficult. The date of separation is very important as it establishes financial responsibilities or benefits to the parties. In a separation agreement, the parties can agree to the date of separation. This makes things cleaner for the parties.

This is merely a partial list of benefits and is not designed to be all-inclusive. There are benefits that are situation specific. For your particular matter, I recommend contacting a competent family law attorney to ask your questions.

Now that you know about some of the benefits of a separation agreement in Virginia, you may have question as to whether a separation agreement is required in Virginia. If so, please read this Blog post. You may also have another question about whether you can write your own separation agreement. If so, please read this Blog post.

I hope that this answers some of your questions regarding the benefits of a separation agreement in Virginia as well as giving you a starting point. If you have more questions, you can always visit our Separation Agreement page by clicking on this link to read more or to set up a free consultation with a lawyer.

And do not forget to scroll to the bottom as there may be related posts that answer other questions that you have or did not think of at when you found this post. Thank you for reading this and I appreciate your time.

Husband Won't Sign Divorce Papers

We actually get this question regularly. To answer the question directly – it does not matter and he does not have to sign divorce papers in Virginia. Now that we have answered the question, let's go into more details if you are interested.

In a nutshell, there are two "types" of divorce in Virginia - contested and uncontested divorces. A thumbnail difference between the two is whether the parties have a written separation agreement. If they do and there is nothing left for the Court to decide, you can get an uncontested divorce in Virginia by filing the paperwork, having your husband sign a waiver/acceptance of service of the divorce Complaint, and then submit the final decree with some other necessary documents for the Judge to sign off on to finalize your divorce. To answer the next question - no you do not actually have to come to Court to get divorced as everything can be done by paperwork.

Now for this to happen, yes your husband has to sign a separation agreement. So let's go to the next logical question - what happens if my husband signs a separation agreement but does not want to sign any of the Court documents? There is a solution for that as well. If he will not, for whatever reason, sign the Court paperwork to finalize the divorce then it gets served upon him and the process follows litigation deadlines. If after twenty-one (21) days your husband does not respond to the Complaint, then we notice (file a Motion for a divorce hearing with the Court) for entry of the Final Decree of Divorce. This is a hearing that you can also skip, however, we like to have our clients present (1) in case the Court has any questions about the divorce and (2) so our clients are actively involved in the process. If your husband does not respond to the paperwork and continues to play ostrich or just make life difficult, then we will ask the Court to enter the Final Decree of Divorce.

The next and hopefully last logical question is what if we do not have a written Separation Agreement? Well the answer is the same - no your husband does not have to sign divorce paperwork in Virginia. The process is similar to the one in the paragraph above but it takes a little bit longer. Each Court has a different process for this type of situation but basically you have to have a "mini" divorce hearing where you and your witness(es) will have to testify as to those things at issue whether it is custody, money, debt, etc. The hearing should not take long but it just has to be a little more formal given that the Court technically has to rule on everything. There are deadlines that have to be followed. For example, the divorce is filed, he is served with a copy of the Complaint and he has twenty-one (21) calendar days after being served to respond. If he does not respond, we notice (set) a hearing like in the previous paragraph and ask the Court to enter the divorce. The big difference aside from the procedure is that you have to wait one (1) calendar year from the date of separation to file the divorce.

We hope that this answered your question about whether your husband has to sign divorce papers in Virginia. If it did not, feel free to give us a call at 757-454-2110 or use the Contact Form at www.brianthomasson.com to set up a free consultation with a lawyer about your situation.

Also we have other blog posts about divorce and the divorce process. Feel free to read them and if you have questions let us know!

If you have questions as to whether a separation agreement is required in Virginia. If so, please read this Blog post. You may also have another question about whether you can write your own separation agreement. If so, please read this Blog post.

I hope that this answers some of your questions regarding whether your husband has to sign divorce papers as well as giving you a starting point. If you have more questions or want to speak with me, you can always visit our Contact page by clicking on this link to read more or to set up a free consultation with a lawyer.

If you have more questions or want to discuss your options, you can either call or text us at 757-454-2110. We also have on our site an online consultation form. Again, our initial consultation with a lawyer about your case is free so it costs you nothing to call and ask your questions.And do not forget to scroll to the bottom as there may be related posts that answer other questions that you have or did not think of at when you found this post. Thank you for reading this and I appreciate your time.

BAT PLC Logo

One of the questions that we get asked is how much does a divorce lawyer cost in Virginia or that we get through Google is how much does a divorce lawyer cost in VA? Unfortunately there is no right answer but there are some factors to consider.

Like any profession, lawyers and attorneys charge different rates. Whether it is hourly rates or flat fees there are no “set costs” or “suggested retail price” for lawyers and law firms. So when asked “how much does a divorce lawyer cost in VA” that answer is “it depends”.

Divorces are usually done with an hourly fee structure and the payment of a retainer. Think of a retainer as a checking account – an amount that is paid to the law firm being held for work or expenses performed on your behalf. So once the retainer is paid the lawyer or law firm can only pull money out of that retainer as earned or needed (sorry for the oversimplification). How the retainer is spent is usually governed by the contract for services signed between you and the law firm. Now the way it usually works for divorce lawyers as well as other types of retained matters is that if the case is over and there is money left on the account, then the client is entitled to a refund. If work is on-going and the retainer has been exhausted, then you will have to make a payment. How much that payment is and when it is due is, again, part of the contract for services.

So the next question is usually how much of a retainer does a divorce lawyer require? Again, it depends. Some firms have standard amounts while others tend to be more fact driven by the facts of the divorce provided at the consultation. Be careful with this situation and you are allowed to ask if the retainer requested is a standard amount or specific to your case. Personally we have a standard amount that we ask for on all of our divorce cases. We do this because we do not want clients believing or even thinking that they are treated like a cash register and that the more money they have the more we charge. We also do this because no matter which attorney you speak with you will get a consistent answer.

The next thing that people look at is the hourly rates of divorce lawyers. Again, this also depends. It can depend upon a variety of factors but usually experience is the predominant one. Quite often, the more experienced the attorney the higher the rates. The problem is that there is no real consistency for lawyers with the same amount of experience. Quite often there are less experienced lawyers who are charging more than more experienced lawyers. A fair question to ask is how the lawyer came to put a value on his/her services.

Another factor to consider is the cost of staff for divorce lawyers. Most lawyers have secretaries, assistants, paralegals, runners, couriers, office managers, etc., who help him/her get things done. These folks want to get paid for their time when they go to work each day. It would be unfair to the client to charge the hourly rate for the divorce lawyer when the work is performed by someone else. So to manage the situation, most contracts or agreements account for “staff” or the non-lawyer hourly rates. These are usually less than the hourly rates of the lawyers and, since most of the non-lawyering work is done by them, those savings can be passed on to the client.

The next question that should be asked of divorce lawyers when trying to figure out if how much it costs is actually asking about costs. Now the “costs” that I am talking about are hard costs. How much for postage, how much are filing fees, how much are copies, etc. These need to be addressed and don’t be shy about asking about it. For example, if the firm operates digitally for the most part and documents are scanned in, is there a charge for this? Are you being charged per scan plus the time of the person scanning?

Lastly, you should ask how you are billed. This encompasses two parts. The first is how the billable time is broken down. By this, are you billed at 1/10th of an hour increments, 1/4 or 1/3 of an hour? Is there a minimum time for matters despite how long they actually take or it takes to perform the task? The second is when am I billed for stuff? This is usually the easy one and most consistent one. It is normally this simple – if someone is working on your matter then you are probably getting billed for it. That makes perfect sense. It is also quite simple and fair. You would not want to be billed when someone is working on another person’s file and vice versa.

This is about the best advice that we can provide for people that want to know how much a divorce lawyer costs in Virginia. While we can speak for our office, we cannot speak for others. So I guess the purpose of this post is to provide you an understanding so going into the consultation and hiring the divorce lawyer you have more education. We hope that we have at least given you something to think about even though we may not have answered your question with this post.

We hope that this answered any questions that you may have or at least give you a starting point for what questions to ask. If you would like to discuss this further, feel free to give us a call or text at 757-454-2110 or use our Contact Form at www.brianthomasson.com/consult to set up a free consultation with a lawyer about your situation.

Also we have other blog posts about divorce and the divorce process. Feel free to read them and if you have questions let us know!

Wife Won't Sign Divorce Papers

We actually get this question with some regularity. To answer the question directly – it does not matter and she does not have to sign divorce papers in Virginia. Now that we have answered the question, let's go into more details if you are interested.

In a nutshell, there are two "types" of divorce in Virginia - contested and uncontested divorces. A thumbnail difference between the two is whether the parties have a written separation agreement. If they do and there is nothing left for the Court to decide, you can get an uncontested divorce in Virginia by filing the paperwork, having your wife sign a waiver/acceptance of service of the divorce Complaint, and then submit the final decree with some other necessary documents for the Judge to sign off on to finalize your divorce. To answer the next question - no you do not actually have to come to Court to get divorced as everything can be done by paperwork.

Now for this to happen, yes your wife has to sign a separation agreement. So let's go to the next logical question - what happens if my wife signs a separation agreement but does not want to sign any of the Court documents? There is a solution for that as well. If she will not, for whatever reason, sign the Court paperwork to finalize the divorce then it gets served upon her and the process follows litigation deadlines. If after twenty-one (21) days your wife does not respond to the Complaint, then we notice (file a Motion for a divorce hearing with the Court) for entry of the Final Decree of Divorce. This is a hearing that you can also skip, however, we like to have our clients present (1) in case the Court has any questions about the divorce and (2) so our clients are actively involved in the process. If your wife does not respond to the paperwork and continues to play ostrich or just make life difficult, then we will ask the Court to enter the Final Decree of Divorce.

The next and hopefully last logical question is what if we do not have a written Separation Agreement? Well the answer is the same - no your wife does not have to sign divorce paperwork in Virginia. The process is similar to the one in the paragraph above but it takes a little bit longer. Each Court has a different process for this type of situation but basically you have to have a "mini" divorce hearing where you and your witness(es) will have to testify as to those things at issue whether it is custody, money, debt, etc. The hearing should not take long but it just has to be a little more formal given that the Court technically has to rule on everything. There are deadlines that have to be followed. For example, the divorce is filed, she is served with a copy of the Complaint and she has twenty-one (21) calendar days after being served to respond. If she does not respond, we notice (set) a hearing like in the previous paragraph and ask the Court to enter the divorce. The big difference aside from the procedure is that you have to wait one (1) calendar year from the date of separation to file the divorce.

This is merely a partial list of benefits and is not designed to be all-inclusive. There are answers that are situation specific. For your particular matter, I recommend contacting a competent family law attorney to ask your questions.

We hope that this answered your question about whether your wife has to sign divorce papers in Virginia. If it did not, feel free to give us a call or text at 757-454-2110 or use the Contact Form at https://brianthomasson.com/contact/ to set up a free consultation with a lawyer about your situation.

Also we have other blog posts about divorce and the divorce process. Feel free to read them and if you have questions let us know!

If you would like to read some of the laws of Virginia regarding divorce, I will provide some links and descriptors to the Code of Virginia. When looking at the grounds for divorce, Virginia Code Section 20-91 provides that to the Court. As it pertains to starting the divorce, Virginia Code Section 20-99 defines that process. If your spouse will not sign paperwork, well this Code Section defines how to serve the paperwork. When paperwork is served on a person who will not voluntarily accept it, these are the Rules of the Supreme Court of Virginia. It is pretty cumbersome so please skip to Rule 3:19 (sorry that I could not provide a link directly to it).

If you have more questions or want to speak with me, you can always visit our Home page by clicking on this link to read more or to set up a free consultation with a lawyer. You can also either call or text us at 757-454-2110. We also have on our site an online consultation form. Again, our initial consultation with a lawyer about your case is free so it costs you nothing to call and ask your questions.And do not forget to scroll to the bottom as there may be related posts that answer other questions that you have or did not think of when you found this post. Thank you for reading this and I appreciate your time.

The answer to this question is yes you can live separate and apart for diverse purposes in Virginia while residing under the same roof. The how to make this happen it is a bit more complicated. So let me try to explain what it means and how it works.

The starting premise is that Virginia does not recognize what is commonly called as “legal separation“. In Virginia, you are either married or you were divorced. There is no in-between as there may be in other states. That does not mean you can’t be separated for the purposes of getting a divorce. It just means that there is no such thing as a legal separation in Virginia. To be separated in Virginia, the parties have to be living separate and apart. Also, at the time of the separation date at least one of the parties had to have the intention for the separation to be permanent. Now parties can separate for a “trial separation” or just to “take a break” and then decide to separate for the purpose of ending the marriage. That just means the separation date is different from the original date of physical separation.

So how do you live separate and apart under the same roof for the divorce purposes in Virginia? That’s actually an easy question to answer, however, implementing it may be a little more difficult. Let me start by giving the example that I use with most clients. If you and your spouse are functioning as roommates then that is the starting point for living separate and apart under the same roof. Think back too other parts of your life when you may have had a roommates, visits to friends with roommates or even go back to popular television or movie shows with roommates that function as roommates. When you are a roommate with someone, each person lives their own life, has their own bills, does their own cooking for the most part, does their own laundry, and shops for themselves. There are very rarely joint accounts set up. When there are joint accounts they are, perhaps, for the limited purpose of paying household bills such as rent, utilities, Internet, etc. Roommates typically do not cook each other‘s meals. They do not do each other‘s laundry. They do not do each other‘s shopping. They have separate health insurance. They do not do each other‘s normal activities of daily living such as cleaning the others room. They really do not have their names on the titles to the other vehicles for even share insurance. That is what I mean by functioning as roommates.

Living separate and apart under the same roof in Virginia, in order to get a divorce, you must follow what I call “the roommate protocols“. You will need to have separate bank accounts. When you go to functions such as birthday parties, weddings, reunions or other events that are with family, you need to avoid holding yourself out as are married. I encourage you to ride to and from the event separately. Mingle with people separately. Sit at different tables. When meeting new people or people that you have not seen in a while, do not introduce your spouse as “my wife“ or “my husband“ as that can lead to people believing that you are holding yourself out as a married couple. To be perfectly honest, your marital status is none of their business anyway especially if it is someone you’re meeting for the first time.

Now with dealing with family functions that becomes a little trickier. At family functions most people know the dynamics of your family. Most people probably know that you are separated and going through or contemplating a divorce. I still encourage you to try to follow the above rules about arriving and driving separately as well as not mingling together as a couple. Try to sit separately if it is possible. Avoid sitting together for photographs. Do not use terms such as “honey “, “sweetie “, or any other “pet names” that you may have for the other. You can still be polite and courteous; in fact I encourage you to do that. There is no need to make it awkward and weird not only for yourselves but for everyone else. Just because you are separated and living together does not mean that it has to be nasty and hostile. Quite the contrary and I encourage you to live your best life possible under the circumstances. I also suggest that you respect your spouse’s opinions as well as boundaries just like you would want yours to be respected.

One of the recommendations that we have for parties that want to live separate and apart under the same roof is to have a Separation Agreement written and signed by the couple. The reason that we do this is that there is now a paper trial of when the separation occurred. It also has other benefits and you can feel free to read this Blog post for more details. You do not have to have a Separation Agreement as we have stated in this Blog post, however, we do believe that it makes the separation while living in the same house cleaner for the Court. You can always attempt to write your own separation agreement and we give pros and cons to that in this Post.

And do not forget to scroll to the bottom as there may be related posts that answer other questions that you have or did not think of when you found this post. Thank you for reading this and I appreciate your time.

Virginia Beach Courthouse

We actually get this question quite often. To answer the question directly - no, both parties do not have to sign divorce papers in Virginia. Now that we have answered the question, let's go into more details if you are interested.

In a nutshell, there are two "types" of divorce in Virginia - contested and uncontested divorces. A thumbnail difference between the two is whether the parties have a written separation agreement. If they do and there is nothing left for the Court to decide, you can get an uncontested divorce in Virginia by filing the paperwork, having your spouse sign a waiver/acceptance of service of the divorce Complaint, and then submit the final decree with some other necessary documents for the Judge to sign off on to finalize your divorce. To answer the next question - no you do not actually have to come to Court to get divorced as everything can be done by paperwork.

Now for this to happen, yes your spouse has to sign a separation agreement. So let's go to the next logical question - what happens if my spouse signs a separation agreement but does not want to sign any of the Court documents? There is a solution for that as well. If he or she will not, for whatever reason, sign the Court paperwork to finalize the divorce then it gets served upon him or her and the process becomes more formal. If after twenty-one (21) days your spouse does not respond to the Complaint, then we notice (file a Motion for a divorce hearing with the Court) for entry of the Final Decree of Divorce. This is a hearing that you can also skip, however, we like to have our clients present (1) in case the Court has any questions about the divorce and (2) so our clients are actively involved in the process. If your spouse does not respond to the paperwork and continues to play ostrich, then we will ask the Court to enter the Final Decree of Divorce.

The next and hopefully last logical question is what if we do not have a written Separation Agreement? Well the answer is the same - no both parties do not have to sign divorce paperwork in Virginia. The process is similar to the one in the paragraph above but it takes a little bit longer. Each Court has a different process for this type of situation but basically you have to have a "mini" divorce hearing where you and your witness(es) will have to testify as to those things at issue whether it is custody, money, debt, etc. The hearing should not take long but it just has to be a little more formal given that the Court technically has to rule on everything.

We hope that this answered your question about whether both parties have to sign divorce papers in Virginia. If it did not, feel free to give us a call at 757-454-2110 or use the Contact Form here to set up a free consultation with a lawyer about your situation.

We have other blog posts about divorce and the divorce process. Feel free to read them and if you have questions let us know!