Believe it or not, you don’t have to get permission from your husband or wife to obtain a divorce in Virginia. I’m often asked what happens in Virginia if one spouse won’t cooperate with the divorce process. The answer is (like with so many things in the law), it depends — but you definitely CAN get your divorce even without consent or cooperation from your spouse.
In Virginia, you can request a divorce based on fault or simply living separate and apart for a specific length of time. Neither one requires cooperation from the other spouse. A judge will need to hear evidence presented by you and at least one witness to establish whether you meet the standard for divorce in your case.
Of course, if there are property issues, support issues, or custody or visitation of minor children to decide, you won’t be able to get a divorce without either a written agreement or a court order. Obviously, getting an agreement requires your spouse to participate — agreements require a signature from both husband and wife indicating that there is nothing left for the court to resolve.
Court proceedings do not require participation from both spouses, although you must prove that you gave sufficient notice and opportunity (called “legal process”) to your spouse to participate in the hearing. If you can’t prove that you did everything prescribed by Virginia law to locate your spouse and provide this notice, the court will not allow you to put on evidence about separation, fault grounds, custody, support, or any other issues relating to your marriage and divorce. Once a judge makes a decision, Virginia law allows a final divorce order even without signatures from both spouses.
In many cases, a spouse does not want a divorce, but does attend all the necessary court hearings in order to protect his or her interests. For example, a wife may prefer to try to reconcile and save her marriage, but wants to make sure that if a divorce is granted to her husband (assume for this example that the husband filed for the divorce), she gets spousal support and everything else she is entitled to, such as her share of the equity in real estate owned by the couple. She can still defend her interests and participate in hearings even if she doesn’t agree with a divorce.
If you have questions about how to find your spouse so you can proceed with a divorce, or if you want to talk to an experienced Virginia attorney about protecting your interests in a divorce, contact us via email or call us at (703) 273-2670.