Do I Really Need a Lawyer for My Virginia Divorce?

[12.09.2021]

Many people considering or going through a divorce ask themselves the question at some point, “do I really need a lawyer?”

The short answer to the question is that Virginia law allows you to represent yourself in court without an attorney in most types of legal proceedings, including divorces. This is called proceeding “pro se,” which is Latin for “in one’s own behalf.” But what the law allows you to do is very different than what you should do. The better question to ask is, “why do I need a lawyer for my divorce?”

It may be tempting to try going through it alone. You may be intimidated by the process of retaining and interacting with a lawyer, or simply be looking to save some money. However, neither of these reasons hold up when weighed against what is at stake. Even relatively straightforward “uncontested divorce actions,” i.e., cases in which the parties agree on all issues and do not plan to put on any evidence of the circumstances leading to the dissolution of the marriage, are complex matters that require a lot of work and attention to detail. Choosing to proceed pro se can have serious long-term consequences if handled incorrectly, including permanently giving up rights surrounding child custody and visitation, child support, spousal support, or property distribution.

So, what makes a divorce complex, too difficult, or too risky to do on your own? A lot of it boils down to procedure.

Like any other civil lawsuit, divorce requires the filing of a legal document called a “complaint” with the appropriate court of law. Yes, a divorce is a lawsuit. That might seem odd, but this is how the legal proceeding is initiated. In Virginia, divorces are filed with the clerk in the Circuit Court in the county or city where you and your spouse last lived together or where your spouse still lives. The spouse who files for divorce is called the “plaintiff.” The other spouse is called the “defendant.”

The complaint must identify the appropriate grounds for divorce and include information that confirms the requirements are met to be granted the divorce according to Virginia law, e.g., temporal residency and spousal separation requirements. The plaintiff pays a filing fee, and then the complaint and a “summons” are served on the defendant. All of this, and the numerous steps that follow over a period of several weeks to several years, must adhere to a specific procedure and timeline required by the court. You will not receive special treatment because you are representing yourself pro se, and the outcome will be equally binding. You will be expected to meet all the procedural requirements as if you were represented by a lawyer. Any misstep along the way could lead to your case being dismissed, putting you back at square one.

Even with a lawyer, divorce is often a stressful, uncertain process. Add in teaching yourself civil procedure and marital law as you go, while coping with the emotional impact of your own divorce – along with the massive time commitment required to draft and file documents like your Complaint for Divorce, Marital Separation Agreement, Request for Ore Tenus Hearing, and Final Order of Divorce – and it can seem downright unbearable. And that’s not even addressing what you can lose, or how you’ll feel if you file documents that unnecessarily or inadvertently relinquish your own rights!

There are many red flags to look for when considering proceeding pro se with your divorce. It is never advisable to go through a divorce without a lawyer that can, at the very least, explain the meaning of legal proceedings and orders. However, there are certain elements that make that prospect even riskier, including whether you have:

• Children
• Significant assets, debts, or liabilities
• Desire to seek divorce under any “fault” ground, e.g., adultery, abandonment, or felony conviction
• Expectations for spousal support (aka “alimony”)
• Outstanding legal or financial issues
• High conflict in your marriage, which may include a toxic home environment or past substance abuse
• The disparity between you and your spouse regarding income, earning potential, or investments made in each other’s education or caretaking of the family
• Questions about your spouse’s rightful claim to your assets, your claim to their assets, or the identification and distribution of separate or marital property
• Disagreement with your spouse about anything regarding the grounds or necessity for divorce, your children, money, property, or future support arrangements
• Concerns about your spouse’s honesty regarding their assets or willingness to comply with any step of the divorce process or provision of any premarital (aka “prenup”), marital, or separation agreements

If the answer is yes to any of the above, then it is even more critical to work with a lawyer that can guide you through this process.

We highly recommend you seek advice from an attorney that can help you with your divorce, regardless of your circumstances. Even in an uncontested divorce where the parties agree on all the issues, and it may seem like the divorce proceedings are a mere formality, it is still encouraged to work with an attorney to increase the chances of a positive outcome. This is a difficult time in your life, and it is crucial that you have an experienced lawyer in your corner who will serve your family with compassion, trusted advice, and fearless advocacy. Our attorneys are skilled in advising clients on matters such as the grounds for divorce (adultery, abandonment, etc.), child custody and visitation, spousal support and child support, and the division of marital property.

To learn how our team can help you, contact WhitbeckBennett by calling 800-516-3964 or emailing clientservices@wblaws.com.

Contact WhitbeckBennett by calling 800-516-3964 or emailing clientservices@wblaws.com.

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