No-Fault and Uncontested Divorce in Virginia

Two different questions

People use these words as if they meant the same thing, and they answer different questions. No-fault is about why the marriage is ending. Uncontested is about whether anything is left to argue over.

The separation period

Va. Code § 20-91(A)(9)(a) allows a divorce on the application of either party once they "have lived separate and apart without any cohabitation and without interruption for one year." The period drops to six months where the parties "have entered into a separation agreement and there are no minor children" born of the parties, born of either and adopted by the other, or adopted by both.

Both conditions must be met for the shorter period. A couple with minor children waits a year, even with a signed agreement. Section 20-91 does not define what counts as living apart, but the affidavit in § 20-106(B) must affirm that the parties have lived apart "with the intent to remain separate and apart permanently" for the statutory period. So the date one person moved out may not be the date that counts. Ask a lawyer or legal aid office if that is unclear, or if you have stayed under one roof.

Steps in an uncontested no-fault divorce

1. Check residency. One party needs at least six months in Virginia before filing, as a bona fide resident and domiciliary (§ 20-97). Service members have their own rules.
2. Know your separation date. The period runs from when the separation began.
3. Put any agreement in writing. A settlement agreement commonly covers property, support and children, and a court may incorporate it into the decree under § 20-109.1.
4. File in circuit court. The J&DR vs circuit court guide explains why, and the court guides list each locality.
5. Deal with service. The other spouse can accept or waive service in the ways set out in § 20-99.1:1. For a no-fault suit, a waiver works if a copy of the complaint is attached or provided and the defendant signs the proposed final decree. Where service and notice are waived, § 20-106(F) allows a divorce solely on the filed documents. See service of process.
6. Prove the grounds. § 20-106 allows deposition or affidavit evidence without leave of court in the three situations below.
7. Submit the final papers. The clerk files a report of the divorce with the State Registrar, and § 32.1-268 requires the information for it with the petition or when filing the decree. Ask the clerk what this court requires.

When affidavits can replace testimony

Section 20-106(A) allows it, without leave of court, only for a divorce on the (A)(9) ground, and only where:

• the parties have resolved all issues by a written settlement agreement,
• no issues remain other than the grounds of the divorce itself, or
• the other party was personally served with the complaint and did not respond or appear.

If either party is incarcerated, § 20-106(B) requires leave of court or the written consent of the guardian ad litem or that party. The affidavit must rest on personal knowledge, contain only facts admissible in court, support the grounds and cover the items listed in § 20-106(B), including residency, the separation, minor children and the other party's military status. The trial court can still require oral testimony, so check local practice with the clerk.