A “no-fault” divorce or uncontested divorce is one where neither party has to prove the other of any wrongdoing. This type of divorce generally takes less time in court to finalize and costs both parties less in legal fees..
In Virginia, a no-fault divorce will only be granted if the individuals have been separated for the required statutory period before coming to court. How long the separation period must last depends on whether there is a marital settlement agreement in place and if the individuals have children who are under the age of 18.
- Individuals with children under the age of 18 must separate for at least 12 months.
- Individuals without children under the age of 18 can divorce after as little as a 6-month separation if they have a marital settlement agreement in place.
With that, understanding what qualifies as a separation and ensuring a marital settlement agreement is in place are paramount to simplifying the divorce process.
What are the criteria for a separation for divorce in Virginia?
Separation is defined as “living separate and apart,” but Virginia law also permits two individuals to continue residing under the same roof during separation.
During separation, at least one of the parties must intend for the separation to be permanent. If both parties believe that they may reunite, it is only a trial separation and does not count towards the requirements to file for a no-fault divorce.
Guidelines to follow during separation for divorce in Virginia
While Virginia law specifies the bare minimum requirements for a separation for divorce, below are some additional guidelines that individuals should consider. These guidelines are especially important for individuals who intend to share a residence during separation.
- Physical separation: Spouses should abstain from sexual relations and sharing a bedroom. It’s also advisable to avoid eating together and doing favors for each other (i.e., washing each other’s clothes).
- Presentation: During separation, spouses should not continue to present themselves as a married couple. This means not wearing wedding/engagement rings and not going out together to parties.
- Intention: At least one spouse may want to express their intention, in writing, such as a signed letter, an email, or a text message, that the separation be permanent.
Being civil during separation is always advisable and these guidelines may be adjusted for the wellbeing of any children in the household. For example, spouses may continue to share meals and attend family functions together if doing otherwise would be emotionally stressful for their children.
Generally, if both spouses are amicable during the divorce, they will be able to separate efficiently and may be suited for divorce mediation.
Establishing a Marital Settlement Agreement
At some point during separation, spouses must come together to reach a marital settlement agreement (MSA). This agreement describes how individuals will live both during the separation period and after the divorce, how their property will be divided and their debts allocated, what their parenting arrangements will be, spousal and child support terms, and how medical insurance and uninsured medical expenses will be handled. Additionally, sometimes certain other issues are covered, such as tax returns, life insurance, and college expenses.
Eventually, the terms laid out in the MSA are incorporated into the parties’ Final Order of Divorce.