Going through a divorce can be an extremely stressful and emotional experience, regardless of whether or not the divorce is contested. You’ll first need to ensure you meet residency and separation requirements based on your case, then you’ll need to determine an appropriate division of all assets and debts, whether or not support should be owed to either party, and the best child custody arrangement and child support (if applicable).
Finally, you’ll submit your written, signed agreement to the court for final resolution of your divorce.
Mistakes during the process or in the final documents can be costly to your future. Luckily, working with an experienced Fairfax family law attorney can prevent some of those grave mistakes as you’ll be supported and guided through the process.
Connect with us to discuss your options and to learn how we can help. Continue reading to learn more about the uncontested divorce process.
Grounds for divorce in Virginia
An uncontested divorce is an efficient and private means of achieving a divorce that is agreeable to both spouses.
Under Virginia Code Section 20-91, a divorce “from the bond of matrimony” may be decreed as either a “fault” or a “no-fault” divorce:
- Fault: for adultery; or sodomy or buggery that is committed outside of the marriage
- Fault: when either party is convicted of a felony, when confined for a year or more, and cohabitation did not resume after knowledge of the confinement
- Fault: where either spouse was found guilty of cruelty, caused bodily harm, or willfully deserted or abandoned the other
- No-Fault: on the application of either spouse when they have been separated for more than one year or, if there are no minor children and the parties have a written and signed settlement agreement, then being separated for more than six months
Uncontested divorce still comes with some risk
Although many might assume that there’s only risk to you if you proceed with a contested divorce without an attorney (unrepresented) because both the other attorney and the court might ignore or overlook your rights, that’s simply not the case.
Those same risks exist in an uncontested divorce because if your spouse is represented and you aren’t, their attorney might try to take advantage of you and convince you to sign an agreement that is more advantageous to their client.
It’s important that you work with an attorney to protect your rights and to help process the case efficiently, but with all the necessary information, so that you and your ex-spouse can move forward intelligently.
Benefits of uncontested divorce
When most people hear the word “divorce,” they usually think of a contested divorce full of messy and expensive court battles where a judge has the power to make decisions that will affect your future whether you agree with them or not.
This is not the reality in most cases, especially in uncontested divorces. Many divorcing couples in Fairfax undergo uncontested divorce because they’re less costly, less stressful, and less hostile than traditional divorce.
1. Less expensive
In addition to being much more costly, a contested divorce requires that your personal life details could possibly be made public due to court proceedings being public records, you no longer have control over the final resolution of your divorce, and it might lead to greater animosity.
2. Less animosity
An uncontested divorce is an option, though, and many times the best path, for spouses who can agree on all the important elements of their divorce. Although you and your spouse might be able to agree on the elements themselves, it’s a complicated process that needs to be done correctly–a lawyer can help with the negotiations surrounding the divorce agreement and the important minutia in the final agreement and decree.
We can help
Working with an experienced Fairfax family law attorney at Select Law Partners PLLC will help ensure that your uncontested divorce is processed quickly and is completed without unnecessary exertion, worry, and effort by you so that you can move forward in your new chapter of life.
We’ve helped clients in Fairfax complete their paperwork and move through their divorce with confidence and ease, sometimes in less than a month.
Qualifying for an uncontested divorce
Although pursuing an uncontested divorce is a great option for a streamlined divorce, it’s not an option for every divorce. First and foremost, you and your spouse must agree on the terms and timing of your separation, which sounds simple, but it dictates when you can file for a divorce. When this has been done, you must both consider, qualify for, and agree to the following key areas before filing for an uncontested divorce.
Residency
To qualify for a divorce, at least one spouse must currently live in the state and must have lived there for, at minimum, six months prior to the filing of the complaint with the court.
If the one spouse doesn’t live in the state but the filing spouse is a current resident and has met the minimum six-month residency requirement, the complaint may still be filed.
Separation requirements for uncontested divorce
Generally, determining one’s residency is a relatively simple issue, however Virginia’s separation requirements for filing an uncontested divorce are unique depending on your situation. In all scenarios, the spouses must be living “separate and apart without any cohabitation and without interruption”, however Virginia Code Section 20-91 further specifies that:
- If there are minor children, you must have lived “separate and apart” for one year.
- If there aren’t minor children and you have a written signed agreement settling all issues arising out of your marriage, then you must be separated for at least six months.
Agreement on key issues
Prior to beginning the process of filing your uncontested divorce, it is important that you and your spouse come to an agreement on all the key issues in your case, which include:
- How you will divide any real estate in the marriage
- How personal property from the marriage will be divided
- The way in which any outstanding debts will be allocated
- Whether either spouse will pay the other spousal support (alimony), and if so, in what amount
- If there are dependent children of the marriage, child custody, visitation, and child support will need to be agreed on
Not only are the above issues necessary in a divorce, they’re often complicated. Without the assistance of an attorney, confusion and disagreement is more likely, and if you’re not in agreement on all issues, you cannot file for an uncontested divorce.
Process for securing an uncontested divorce
Even in situations where both spouses are in complete agreement concerning key issues in their divorce, it’s still a complex process. Because the process can be intimidating, it’s best for each spouse to retain their own attorney so that each step is followed in accordance with law, and that each individual’s rights and interests are protected, and to ensure that both parties fully understand their rights and the implications of the final agreement.
Although a family law attorney will be by your side, it’s helpful to have a general understanding of the process of an uncontested divorce in Fairfax.
1. File a complaint
The process begins by drafting then filing a complaint for divorce in the circuit court of the county or city in which you or your spouse resides. (You can find your appropriate circuit court here.) The complaint must contain the necessary content to provide for the uncontested divorce you seek, and a court filing fee is due when the complaint is submitted to the court.
2. Serve the complaint
Your spouse must be served with the complaint in accordance with the state’s service requirements. Service can be arranged through the court or a private process server who will personally deliver the complaint to your spouse.
Service will require an additional fee. In an uncontested divorce, though, your attorney will send your spouse a Waiver of Service which your spouse will sign, so that formal service by Sheriff or private process server becomes unnecessary.
3. Sign a waiver of service
To support a more efficient and speedy process in your uncontested divorce, it is recommended that you pursue a “waiver of service” to be signed by your spouse instead of utilizing a process server, paying the service fee, and waiting for your complaint to be served.
If your spouse signs a waiver, it will be filed with the court and it will inform the judge that they do not object to your request for divorce, which further supports a more efficient process.
4. Draft a settlement agreement
A settlement agreement is a written agreement between you and your spouse which includes the following:
- The division of property
- The assignment or allocation of debts
- Alimony (if applicable)
- Child custody, visitation, and support (if applicable–see below on more specifics on these issues)
Division of property is one of the key aspects of a divorce agreement, whether it’s contested or uncontested. Agreeing to the division of property allows you to maintain better control over the process and ultimately have a division you agree to rather than allowing the court taking control and making the decisions.
Both you and your spouse must sign the settlement agreement, which is legally binding when submitted to the court. To ensure that your settlement agreement accomplishes what you believe is a fair agreement on the above issues, and most importantly that it is properly drafted, it’s recommended that you work with an experienced family law attorney in Fairfax.
5. Attend a court hearing
The final step in the process of completing an uncontested divorce is to schedule a court hearing so that the divorce can be granted by the judge. Although this is generally a fast and efficient hearing, it’s possible to avoid it altogether. If you prefer to stay out of the courtroom altogether, we can file an affidavit which allows you to obtain a divorce without attending a court hearing.
Children and uncontested divorce
Child support
In Virginia, both parents are responsible for and are obligated to support their children, regardless of their marital status to one another. Child support is calculated based on the combined income of both parents to ensure that the child or children receive the benefit of what the parents would have provided if they were in a single intact household.
The state will hold each parent responsible for covering a percentage of the entire child support amount calculated based upon the shared income. Also included in child support is providing health and dental care for the child or children and childcare costs incurred by the custodial parent for their employment.
What is calculated as your “income” for child support?
The amount of money that is incorporated into the overall calculation for the combined gross incomes of both parents may go beyond your paycheck. Your income includes a broad variety of sources of revenue, including any (or a combination) of the following:
- Salary or hourly wages
- Bonuses
- Commissions
- Severance pay
- Stock dividends
- Pension income
- Social Security
- Disability
- Worker’s compensation
- Unemployment benefits
- Rental income
- Winnings (lottery, gambling, awards, etc.)
- Business income
- Spousal support received
Because child support is for the benefit of the child or children, it’s important to accurately measure both parents’ income to ensure that an accurate total income, and accurate percentage of responsibility of support, is calculated.
Income that is excluded for calculating child support
While it might seem that every dollar of income from every possible source is used when calculating child support, as with most things, there are exceptions. For example, income from state and federal public assistance (this might include supplemental security income (SSI), welfare income, supplemental nutrition income, and other sources of public support) are excluded from the calculation.
Additionally, child support received or that has been earmarked for child support to another child (one outside this divorce) are excluded. For example, when one spouse of this divorce has a child with a different parent, whether they receive child support or pay it, that element of income or expense is excluded from the calculation in your divorce.
Calculating child support payments
There is a relatively straightforward formula that is used to determine the amount of child support required for your child or children, and the amount that will be paid by one party.
Here are the steps to calculate child support:
- Determine each parent’s total gross monthly income, then combine them into one figure – the “combined gross monthly income.”
- Consult the table found in Virginia Code Section 20-108.2. Locate the calculated “combined gross monthly income” in the first column, and draw a line across that row.
- Draw a line down the column that matches the number of children (in this divorce case). The point where these two lines meet is the basic child support obligation.
For example, for parents with a combined monthly gross income of $500, the child support obligation would be $68 for one child, $104 for two children, $126 for three children, $141 for four children, $155 for five children, and $169 for six children. The amount paid by one parent (typically referred to as the “noncustodial parent”) is then calculated from the amount on the table based on their income.
As previously mentioned, the costs of health insurance may be deducted and the costs of employment-related childcare costs might be added. The court isn’t required to issue a child support order in all cases because the Virginia Department of Social Services is also able to issue a child support order based on the same guidelines that are used by the courts.
There are many intricacies to determining child support, and many things that might be unintentionally overlooked. The best way to obtain an appropriate child support figure that will ensure proper support for your children is to work with an experienced Fairfax family law attorney from Select Law Partners PLLC.
Child custody and visitation (parenting time)
Child custody is often one of the most emotionally difficult and complicated aspects of a divorce. Still, an agreement regarding child custody and visitation (or parenting time) must be included in your settlement agreement for an uncontested divorce, if there are minor children and that issue is raised in the divorce suit.
Depending on the circumstances, you may be granted joint or physical custody.
- Legal Custody: decision-making rights concerning the welfare of the child or children, which includes religion, education, and medical care
- Physical Custody: which parent will provide the primary residence for the child and the visitation or parenting time schedule with the other parent
In both legal and physical custody, parents can agree to sole or joint legal custody or sole or shared physical custody.
Joint legal custody is generally the best option when parents communicate well, are cordial with each other, and generally co-parent effectively. Joint legal custody means that both parents have the right to participate in decision-making concerning their child, regardless of the child’s primary residence. Joint legal custody means that one parent cannot make certain decisions for the child without first consulting the other parent.
Parents may agree to share physical custody, however that doesn’t necessitate that the child will split their time evenly between the parents’ respective homes–an equal split may be agreed to, but so can a wide variety of schedules, including where one parent primarily has the child during the school week and the other has alternating weekends.
There are many different visitation agreements that can be considered based on the age of your children, your children’s relationship with each parent, the distance between each parent’s home, just to note a few factors. Your child’s well-being is important to you, so it’s recommended to consult with a family law attorney regarding your child custody needs.
Considering uncontested divorce? Let us help.
Going through a divorce is already a very difficult process, even before digging into all the rules and requirements. By working with a Select Law Partners PLLC experienced family law attorney, you’ll be supported and informed through every step of your uncontested divorce. We will communicate with your spouse and their attorney to reach a mutually satisfactory agreement, without the intrusive involvement of the court.
Our experienced and client-centered family law attorneys are standing by to set up an appointment to learn how they can help you. Please call us at (855) 541-4867 or visit our site to schedule your consultation now.
