Uncontested vs. Contested Divorce in Virginia

In Virginia, a spouse who decides to get divorced has a decision to make. Should they file for divorce based on fault grounds or no-fault separation grounds?

This article will offer a “Virginia Divorce 101” overview on fault and no-fault grounds for divorce, the procedural difference between uncontested and contested divorces, and the advantages of uncontested divorce in terms of time and cost.

Fault Grounds and No-Fault Grounds FOR Divorce 

In Virginia, a divorce may be granted based on one of three fault grounds or on a no-fault separation ground.

Uncontested Divorce

Pursuing no-fault separation ground is called an uncontested divorce. In order to obtain uncontested divorce, spouses must have been living separate and apart for one (1) year or more without any cohabitation or interruption, or six (6) months if the parties entered into a separation agreement and there are no minor children of the parties. In essence, the parties must agree on significant details of their marriage and divorce, including but not limited to child custody, child visitation/parenting time, child support, spousal support, retirement accounts, marital debts, marital properties, and personal properties.

Contested Divorce

When a party does not meet a separation ground for divorce, the party will need to either continue to strive to enter into a separation agreement, or to file for contested divorce. There are three fault grounds for divorce in Virginia: (a) adultery, sodomy, or buggery; (b) conviction of felony after the marriage; and (c) cruelty or desertion.

Adultery, Sodomy, or Buggery

The complaining party must prove by clear and convincing evidence and by a third party’s corroboration that the spouse engaged in voluntary sexual intercourse outside the marriage. The complaining spouse must not have condoned such act by forgiving the marital fault and continuing to voluntarily reside with the guilty spouse.

Felony Conviction

The court may grant fault-grounds of divorce when a party is convicted of a felony after the marriage and confined after being sentenced to one-year or more. A spouse does not need to meet any waiting period or separation period to file for divorce under this contested ground. However, the complaining spouse must not have resumed cohabitation upon learning of such confinement. It is also important to note that Virginia courts require a Guardian ad Litem to be appointed to represent the interests of the confined spouse, and the complaining spouse may need to bear some costs of the Guardian ad Litem.

Cruelty or Desertion

Cruelty involves actions of a spouse that renders marital cohabitation unsafe or that involves danger to life, limb, or health. Desertion involves specific intent and action to desert the marriage and the actual breaking off from the cohabitation. A spouse may also allege “constructive desertion” if the other party’s cruelty leaves no option for the spouse but to leave the marital home.

The Big Procedural Difference between Contested vs. Uncontested Divorce 

Whether filing for contested or uncontested divorce in Virginia, the residency requirement is the same: at least one spouse must have been living in Virginia for at least 6 months before filing for divorce. However, the biggest procedural difference between the two is that no court appearance is required for an uncontested divorce. An original separation agreement will be submitted to the court, and the separation agreement terms will be incorporated into the Final Divorce Decree.

In contrast, contested divorce often leads to Pendente Lite (temporary reliefs pending final divorce) hearings, settlement conferences and court appearances.

Advantages of the Uncontested Divorce 

An uncontested divorce typically parties that have agreed on the terms of divorce, so the parties can get their divorce finalized within a few months of filing the no-fault divorce complaint providing a quicker result.

In addition to the shorter processing time, the second big advantage of the uncontested divorce is the economic cost. Unlike contested divorce cases where one is unable to predict the expected time and cost, uncontested divorce cases present a more predictable timeline and cost structure.

One final incentive of the uncontested divorce is that the parties are in control of the separation agreement terms. In contested divorce cases, parties are bound by a court’s final order terms, whether they like them or not. It is not a judge, but the parties themselves who best know their situation and understand the circumstances; and it is the parents themselves who best know the needs of their children. Therefore, in an uncontested divorce, the spouses can discuss and agree on which terms could best address their family’s household situation and needs.

Whether you are pursuing an uncontested or contested divorce, it is beneficial to consult legal counsel to tailor fit a separation agreement and help you navigate optimal options for either an uncontested or contested divorce.

Ra Hee Jeon is a Pender & Coward attorney focusing her practice on family law and immigration matters.