Considering filing for divorce in Virginia? Here’s how to start the divorce process.
If you’re considering divorce, you likely have questions about how to start the divorce process. If your matter is contested — meaning you and your spouse haven’t reached an agreement on one or more issues such as property division, support or custody — you’ll need to file a contested Complaint for divorce in court.
While every divorce is different, here’s a high-level overview of what you can expect when you file for divorce in Virginia:
Step 1: Decide whether to file on fault or no-fault grounds
In Virginia, you can’t file for divorce simply because you want one. You have to meet the specific legal criteria to file for either a fault-based or no-fault-based divorce.
No-fault divorce
Most divorces today are filed on no-fault grounds. In Virginia, that means:
- You and your spouse have been separated for at least 1 year; or
- You have been separated for at least six months, plus you don’t have any minor children together, and you have fully resolved your matter by signing a property settlement agreement.
Virginia law also allows spouses to be separated while living under the same roof, provided you are able to prove you are truly separated.
Fault-based divorce
Virginia also awards divorces based on fault. This does not commonly occur, but when it does, the most common fault-based divorce grounds include adultery, cruelty, and desertion. Sometimes, filing a fault-based divorce matters strategically, especially in cases involving spousal support. However, this is something we evaluate carefully with each client.
Step 2: Draft and file the Complaint
Once you’ve decided how to proceed, the next step is filing a Complaint for Divorce.
This document officially starts your case. It provides the court with basic facts about your marriage and family, outlines the legal grounds for divorce and facts that support these grounds, and specifies the issues you are ultimately asking the court to decide.
Step 3: Serve your spouse
After filing, your spouse must be formally notified of the case. This is called “service of process.”
This is usually done by a private process server, but it can also be done by the sheriff or through a signed acceptance or waiver of service process.
Step 4: Answer
Once your spouse is served, they have 21 days to respond to your Complaint for Divorce. They may:
- File their answer
- File their own Counterclaim for Divorce, or
- Challenge the sufficiency of your pleading
If they file a Counterclaim, you’ll have an opportunity to respond to that as well.
After the Complaint has been filed, the courthouse doors have been opened for you to issue discovery to the other side (asking them questions under oath and requesting documents), issue subpoenas and file something called a Motion for Pendente Lite Relief, which allows the Court to put certain temporary measures in place while you are waiting for your final trial. These temporary orders can address issues like support, exclusive use and possession of a home, or an advance of attorneys’ fees.
At this stage, you’ll also typically schedule trial dates. Even when a trial is scheduled, you can still resolve your matter ahead of the trial dates. Sometimes, setting trial dates can strategically help motivate both sides to actually sit down and resolve their matter — without those trial dates, the matter might otherwise linger for months, either because one side is intentionally delaying or because life simply gets in the way.
Why family law guidance matters early
Before filing for divorce, it’s important to consult with an experienced family law attorney. A divorce attorney can evaluate your specific circumstances and advise whether it strategically makes sense to file immediately or whethera different approach may better suit your goals. If filing is the right step, they can also guide you on which grounds to pursue and how to navigate each stage of the litigation process.
Watch: What to expect at an initial consultation with a divorce lawyer
Emily Baker is a partner at Tucker Family Law and serves clients in Virginia and the District of Columbia. If you have questions about starting the divorce process in Virginia, Maryland or DC, the family law attorneys at Tucker can help you understand your options and next steps.
