Getting divorced is never easy. This is especially true when you’re planning to pursue a “DIY divorce” and represent yourself in court. Not only do you have to go through the emotional challenges of ending your marriage, but you have to figure out the proper legal steps, forms, and filing procedures to make it official.
Thankfully, services like My Legal Case Coach make it easier for Virginia residents seeking a DIY divorce to handle the legal aspects of their case. Through our easy-to-use legal case form packets and 1:1 virtual coaching services, we’ve worked with numerous clients to help them confidently draft their own marital settlement agreements, divorce paperwork, child custody and visitation arrangements, and more to seek the best outcome for all parties involved.
As you might imagine, we get a lot of questions from our divorce clients about the process and how to properly prepare and file their case. Here are some of the most frequently asked questions we receive about uncontested divorces in Virginia and our responses to them.
1. Do we have to live in separate homes to be separated?
No. The Commonwealth of Virginia considers separation to be a “state of mind” rather than a physical state. Maintaining separate residences may not be financially feasible for couples while they are separated, so you can still occupy the same home leading up to your divorce proceedings.
The one caveat? You must demonstrably “live separate and apart” from each other. That means treating each other as platonic roommates — in other words, you can’t share a bed or room, or act like a couple inside or outside the home. You can’t run errands for each other, cook for each other, sleep together, go on social outings together, etc. Essentially, you must not behave in ways that would indicate you are a married couple.
2. Do you have to file something with the Court to be separated?
No. There is no formal paperwork that must be filed with a Virginia Court to be considered legally separated in Virginia. Instead, in your Marital Settlement Agreement (which is required for a couple to file for an uncontested divorce), you and your spouse must document the date when either one or both of you formed the intention to permanently end the marriage and separate, and that there is no possibility of reconciliation.
3. Can’t I just file for divorce once our Settlement Agreement is signed?
Many separated couples believe that having a signed Settlement Agreement is all they need to begin their divorce proceedings. If you have not yet met Virginia’s mandatory separation period (one year and one day for couples with minor children; six months and one day for couples without minor children), you cannot file for divorce. If you file too early, you will have to re-file or seek to obtain permission from the Court to file an amended Complaint for Divorce once you have reached the proper separation period, which can delay the already-lengthy divorce process.
4. Do I need to add my adult/emancipated children’s names?
If any children were born of the marriage you are seeking to end, then you must include their name(s) and date(s) of birth, even if they are adults or otherwise emancipated. While you will not have to worry about custody or visitation matters if you and your spouse only have adult children together, you still need to include them as part of your Settlement Agreement. This is because some children have special needs which prevent them from caring for themselves or ever being able to live independently or support themselves even after they are age 18. The child support laws of Virginia protect such children, so the Court needs to know whether any of your adult children meet these criteria.
5. Can we file in a different county where we live?
If you have a signed Settlement Agreement and have met the minimum separation period, you can technically file for a divorce in any Virginia county you want. This may be ideal for couples without minor children who want to file in a less populated county (where their proceedings may go faster) or who would prefer not to have a public record of their divorce on file in their county of residence. However, if you do have minor children, where the custody, visitation and child support will remain reviewable and modifiable by either parent in the future, you should plan to file in the Virginia county where your children actually reside and attend school.
6. Can we separate our finances/assets right away?
Yes. As long as the division of debts and assets is fair and equitable, you do not have to wait for your divorce to be finalized before you begin separating your financial accounts. However, we do advise our clients to draft and sign their Settlement Agreement prior to dividing up their finances to avoid any disputes down the road.
It’s important to note that if you and your spouse cannot agree on how to separate all of your assets and debts but are otherwise eligible to file for divorce, you can draft what is known as a Partial Settlement Agreement and ask the Court to rule on any issues you haven’t sorted out.
7. An asset I acquired during our marriage is only titled in my name. Isn’t that solely my property?
If you didn’t sign a premarital or post-marital agreement with your spouse stating otherwise, any assets acquired from the date of your marriage through the date of separation are considered joint marital assets (even if they are only titled in your name). This means your spouse may be entitled to half of those assets. This also includes post-marriage income earnings and contributions to retirement accounts, as well as post-marriage contritbutions to pay the mortgage, taxes, and other expenses associated with a residence even if that residence was owned by only one spouse prior to the marriage.
8. Can I negotiate custody/visitation with my stepkids?
Couples with children from a previous marriage often form close bonds with their stepchildren, and it’s understandable that you might want to negotiate custody and visitation rights with your stepkids after your divorce. If you wish to do this, the minor child(ren)’s other natural parent must sign off. It is also important to keep in mind that obtaining legal custodial status for a step-child can trigger child support obligations for that child.
9. Can we have child support go longer than age 18?
Yes. You can absolutely deviate from Virginia’s statute on child support obligations and have separate provisions in your agreement setting forth the age of termiantion. Virginia’s child support statute only controls what a judge can order if you and your spouse cannot agree private and litigate the matter. If a judge has to make the decision for you, the statute only allows a judge to award child support through age 18 and sets foth very limited factors to determine the amount of support — each spouse’s gross income, health insurance coverage, and work-related childcare expenses. Privately, however, you and your spouse can create custom and unique provisions that fit your family’s and children’s true needs. MLCC can help you create these provisions, including provisions related to paying for things like private school tuition, tutors, and extracurricular activities.
Similarly, if you want your spouse to agree to share in the responsibity of paying for your children’s undergraduate college tuition, room and board, MLCC’s forms packet provide sample provisions to help you add this to your Settlement Agreement.
One benefit of having a legal coach help you craft a well-written Settlement Agreement is that they can help you properly memorialize issues that deviate from the “standard,” so that you can legally protect yourself should your spouse try to later reneg on those terms post-divorce. Your agreement is the equivalent of a court order, and a judge can hold your spouse legally accountable for violating it.
10. Are verbal agreements enough when we want to make a change?
Every time you and/or your former spouse want to vary from your original Settlement Agreement, it’s best to memorialize it in writing. No provision is waived or modified unless it’s in writing and filed with the Court.
The documentation of what you want to change is just as important as drafting the original agreement itself, so if you want to make changes properly, we advise consulting a legal professional. In addition to legal case form packets (which include a free hour of virtual coaching), we offer ongoing prepaid coaching sessions to help you make amendments to your existing settlement agreement or modify an existing court order, and ensure you understand how to file those changes with your local court.
Need help with your Virginia DIY divorce case? Schedule a complimentary 15-minute consultation with My Legal Case Coach to discuss your circumstances and learn how we can guide you through the process.