By: Michael Lehr

Like much of the rest of the country, Virginia remains locked down to the ongoing COVID-19 pandemic. Governor Ralph Northam’s “stay at home order,” issued on March 24, 2020, remains in effect through June 10, 2020, and instructs all Virginia citizens to stay home with limited exceptions for necessary activities. 

As a result, couples on the brink of breaking are now facing job loss, an inability to see friends and socialize, and are forced to remain indoors, quarantined together. Unfortunately, these stresses may build upon an already deteriorating foundation and could lead partners to seek filing for a divorce. Complicating matters further, in response to the stay at home order, the Supreme Court of Virginia issued an order of judicial emergency, which essentially shut down all of the courts across the state until May 17, 2020 (if not further extended). 

However, the courts remain open for certain emergency cases, criminal matters, and may hear some cases via audio-visual platforms. Despite the ongoing pandemic, we are here to assist you with filing for divorce during COVID-19.

Virginia recognizes two types of divorce: (1) divorce from bed and board, or “a mensa et thoro,” and (2) divorce from the bonds of matrimony, or “a vincula matrimonii.” A divorce from bed and board is sometimes referred to as a limited or partial divorce. In contrast, a divorce from the bonds of matrimony is an absolute or permanent divorce – most couples seek a divorce from the bonds of matrimony immediately. Within that distinction, Virginia allows spouses to seek a “no-fault” or an “at fault” divorce, depending on their situation. No-fault divorces merely require the filing spouse to be a bonafide resident of Virginia for six months (or stationed in Virginia for six months if in the military). The parties must live separately for one year without cohabitation. 

However, if there are no minor children in the marriage, both spouses may agree to enter a settlement agreement where they settle all of the particulars of the divorce and cut this time to six months. In contrast, an “at fault” divorce allows either spouse to seek a divorce following adultery, cruelty, or abandonment of the partner spouse. However, this, too, requires a year-long separation without cohabitation.

Regardless of the type of divorce you are seeking, the process, including when you initially file with the court, is somewhat similar for either method. To begin, although required not by law, courts and attorneys alike highly suggest that you speak to an attorney before taking any measures yourself. A first step may include a sit down with an attorney to discuss the nature of your pending divorce and ascertain the scope of the issues, such as child custody, spousal support, division of assets, etc., which may arise. To avoid person-to-person contact, many law firms – including WhitbeckBennett – have put measures in place, allowing them to conduct this initial consult through a virtual conference. During this meeting, you and your attorney will be able to speak about the specific facts of your situation and determine if divorce is right for you. Once you’ve talked to an attorney and decide to move forward, it’s vital to utilize the ensuing weeks to collect all of the necessary documents to support your filing. For example, some of the documents you’ll likely need to collect include: pay stubs, tax returns, childcare receipts, and evidence of abuse, adultery, or abandonment.  

Currently, Virginia courts are only hearing certain criminal and emergency matters, while continuing nearly all other civil cases – including many divorce matters. The quicker you collect these and other pertinent documents, the quicker your attorney can file your case, even though it won’t be heard until after the courts reopen. Given the several months in which the Supreme Court of Virginia’s judicial emergency has been in effect, a significant backlog of cases has arisen–which the courts will need to reschedule. By filing your case early, you place yourself and your divorce ahead of the masses. 

Moreover, if there are one or more minor children of the marriage, Virginia law dictates that child support shall be awarded retroactively to the date of filing. Thus, the longer you wait, the less support you will be entitled to during this period before the case is heard.

In the interim, before your case is heard, you can work with your attorney to ensure you have supplied them with all of the necessary documents and information to support your case. 

Additionally, this gap between filing and trial grants you, your attorney, and your spouse the opportunity to work on the marital estate settlement. Virginia courts are currently accepting agreed orders of divorcing parties, thus potentially allowing you and your spouse the chance to finalize your divorce primarily outside of court.