The Basics of Divorce

What is a "Divorce"?

A divorce, sometimes called a decree of "dissolution of marriage", is a court order terminating a marriage. It no longer exists. Unlike an annulment, which states that the marriage never existed, a divorce is the termination of a valid marriage.

Typically in the divorce the parties and/or court resolve all issues between them, such as division of property, child custody and visitation, and spousal and child support.

Can I Get Divorced Before We Finalize All the Details?

In many states the answer is "yes". The typical case is one in which one spouse wants to remarry before all the other issues such as child custody and visitation, support, distribution of property and attorney fees are resolved. In states permitting this "bifurcation", the court will handle the end of the marriage separately from the other issues. This permits the parties to remarry while providing them additional time to resolve the remaining issues. If the parties cannot negotiate matters themselves, the court retains the ability to resolve all remaining issues at trial.

What is a "Bifurcation" of Marital Status?

In a dissolution of marriage lawsuit, one spouse may want to get married before all the other issues are resolved (child custody, child visitation, child support, spousal support, distribution of property, attorney fees, and personal conduct). Under state law, one spouse may be able to have the issue of marital status taken separately from the other issues, in order to remarry while providing additional time to work to resolve the remaining issues. By "bifurcating" marital status from the other issues, a spouse can be returned to the legal status of an unmarried (single) person, while the court retains the ability to resolve the remaining issues (at trial if negotiation fails).

Where Do I File for Divorce?

Divorce actions are filed in the circuit court. Preferred venues are the county where you last lived as husband and wife or where the defendant in the action lives. However, recent amendments to Virginia’s code allow it to be brought in other venues.

How Long Will it Take Me to Get a Divorce?

If you are proceeding on fault grounds, i.e. cruelty, desertion, adultery, you can file immediately. If the matter is contested it can take six months or a year or more to go through the process of litigating the fault grounds and the equitable distribution and support issues.

Child custody and visitation are another matter that have to be decided. These may be separate hearings and can lengthen the process. If you are proceeding on no-fault grounds based upon separation you must be separated the required period of time. If there are children or you do not have a separation agreement, you must wait one year. If there are no children and you have an agreement, you only have to be separated six months. When you file on no-fault grounds you can usually get the divorce in several months, sometimes less. It really depends on the efficiency of your local court.

May the Provisions in a Divorce be Changed Afterwards?

Unless there is a provision in the separation agreement to do so, they cannot. However, there is a provision in the law to amend spousal or child support based upon a change of circumstances.

The only other provision reasonably available is fraud. If a party commits fraud in the negotiation of an agreement, it may allow for a change in the agreement to correct it.

There is also a provision in the law to correct mistakes in drafting. However, usually the mistake must not be unilateral, that is, only one party believes that the language is in error.

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