If you are thinking about divorce in Virginia, the clock starts on the day you and your spouse separate.
Most couples have to be separated for six months or a year before a judge can grant a no-fault divorce. Filing, serving your spouse, and working out an agreement all happen around that waiting period. This post walks through the usual process, what occurs when you and your spouse agree or cannot agree, and how children affect the timeline.
Do I Have to Be Separated Before I Can File?
For most people, yes. The separation period has to run its course before a no-fault divorce can be granted, and it starts without any paperwork at all.
In Virginia, there is no such thing as filing for legal separation. There is no form to submit and no court order that starts the period of separation. Under Virginia law, you are separated when either you or your spouse decides the marriage is over and starts living separately, with the intent that the separation is permanent.
Once one of the parties has the intent and takes affirmative steps to be separate, the period of separation, one year or six months, is counted from that date. As nothing gets formally filed, the date of separation is established by what can be shown in Court to corroborate the date of separation. In order to have evidence of the separation, it is advised to write down the day, what happened, and tell someone you trust at the time rather than reconstructing it a year later. As only one of you needs to have formed the intent, you do not need your spouse to agree. If the two of you later disagree about the date, a judge will have to decide the date based on the evidence.
Under Virginia Code § 20-91 (current through the 2026 session), you must live separate and apart, without cohabitation and without interruption, for one year before a no-fault divorce can be granted. That drops to six months if you have no minor children together and you have signed a separation agreement that resolves all issues related to the divorce.
In addition to the above, you also have to meet a residency requirement. Virginia Code § 20-97 requires that one spouse has been an actual bona fide resident and domiciliary of Virginia for at least six months before the suit is filed.
If your spouse is in the military and Virginia is not their home of record, that usually does not stop you from filing for divorce. Section 20-97 provides that a service member who has been stationed or has lived in Virginia for six months or more before the suit is filed is presumed to be domiciled here and to have been a bona fide resident for that time. As such, simply being stationed on a base in Virginia meets the residency requirement for filing. Our military divorce page covers the parts that are different, like dividing a military pension.
Can My Spouse and I Separate Without Moving Out?
Often yes. Many couples cannot afford two households while a divorce is pending, and Virginia law does not require the parties to have two separate households.
Virginia courts have granted no-fault divorces to spouses who never moved apart. In Bchara v. Bchara, 38 Va. App. 302 (2002), the Court of Appeals upheld a divorce where the couple went on living in the same home for more than a year after the wife decided the marriage was over. In that case, the wife moved his possessions out of the master bedroom into a guest bedroom, and the record showed no claim of sexual relations between them after that. Additionally, the wife stopped depositing money into their joint account, stopped going to church with him and attending his family’s functions. She did keep buying groceries, cooking, and doing his laundry. The court held that sharing meals and keeping house did not, by themselves, mean the couple was still living together.
Although the statute doesn’t give a checklist, it does require spouses to live separate and apart without cohabitation or interruption. Ultimately, it will be up to the judge to decide whether a particular living arrangement met that requirement. As each case will come down to the specific facts and the judge hearing the case, be wary of anyone who gives you a fixed rule. Sleeping in separate bedrooms may not be enough if the rest of the household ran as it always had.
Since July 1, 2021, a no-fault divorce no longer needs a corroborating witness. Virginia Code § 20-99 exempts the separation ground from the rule that a divorce cannot rest on the spouses’ own testimony. While there are plenty of pages online that indicate you need a witness, rest assured for a no-fault divorce that is out of date. Despite the change in the law, having a witness who can describe the arrangement is still useful if your spouse disputes the date.
Before counting time in a shared home toward the separation requirement, ask an attorney whether your arrangement qualifies.
One narrow alternative. Virginia has something that resembles legal separation, a divorce from bed and board under Virginia Code § 20-95. It is a limited divorce that leaves you legally married while a court addresses support and custody, which can be converted to a full divorce later. Courts grant it rarely, usually where religious belief or health insurance makes a full divorce unworkable for now.
What Grounds Do I Need to File for Divorce?
Virginia recognizes both no-fault and fault grounds.
No-fault is the separation route above. Most divorces here proceed this way, including plenty where one spouse feels the other is entirely to blame.
Fault grounds under § 20-91 include adultery, conviction of a felony with more than a year of confinement, and cruelty, desertion, or abandonment. Adultery and felony conviction carry no waiting period. Cruelty, desertion, and abandonment require one year from the date of the act before a divorce can be granted.
A spouse’s conduct can affect spousal support. But fault has to be proven with evidence, which adds cost and conflict. Whether fault is worth pursuing in your situation is one of the first things to talk through with a divorce attorney.
How Do I File for Divorce in Virginia?
You file for divorce in a circuit court, in the county or city where you and your spouse last lived together, or where your spouse lives now. We most often help clients in the Stafford, Fredericksburg, and Spotsylvania circuit courts.
The initial document you file to start the process is called a complaint. It sets out the details regarding the marriage, the separation date, the grounds you are relying on, and what you want the court to decide about custody, support, and property.
There is a filing fee, paid to the circuit court clerk. The fee varies by court and by what you are asking for, so it is best to call the clerk’s office where you plan to file and ask for the current amount. That fee is separate from anything an attorney charges.
After filing, your spouse then has to be formally notified, which is called service of process, and is usually done by the sheriff or a private process server. Your spouse has 21 days to respond. If your spouse is cooperative, they can sign a waiver of service instead of having to complete formal service which is faster and cheaper than having them served.
While you are certainly allowed to file for a divorce without a lawyer, and some people do in simple uncontested cases, please note that it gets harder to do alone once children, a house, or a retirement account is involved.
You can negotiate custody, support, and property division during the separation period, before any trial date is set.
What If My Spouse and I Agree on Everything?
This is an uncontested divorce and it usually takes less time and costs less than a contested one.
Reaching a comprehensive agreement means that a resolution on custody and visitation, child support, spousal support, and how you divide your property and your debts has been reached. The terms go into a written contract, usually called a marital settlement agreement or property settlement agreement, which the court incorporates into the final decree.
Once you have signed the agreement and completed the required separation period, an uncontested divorce can usually be finalized through written filings, often with a sworn statement instead of a hearing. In an uncontested case, many people never appear in court.
Some people handle simple uncontested divorces themselves without any trouble. The problems usually show up later, in a property settlement agreement that did not divide a retirement account properly or left a mortgage in one name without addressing it. Those are expensive to fix after the decree is entered, and sometimes cannot be fixed at all. If you own a home or either of you has a pension or a 401(k), have an attorney at least review the agreement before you sign it.
Can We Use a Mediator Even If We Disagree?
Yes. Mediation is meant for spouses who disagree.
You and your spouse each bring your own attorney, and you meet with a mediator who is a neutral person trained to help both sides reach a settlement. Sometimes everyone sits in one room, but often each of the parties stays in a separate room with their attorney while the mediator goes back and forth with offers. The mediator does not represent either of you and cannot decide anything. Your attorney protects your interests the same way they would in court.
Mediation is faster and cheaper mainly because you are not waiting on the court. A contested case waits for a trial date, which in a busy circuit court can be months away, and hearings sometimes get continued when the court’s docket is full. Every step of preparing for trial adds attorney time. In mediation you pick the date with the mediator, and many cases settle in a single day.
When you reach agreement, your attorneys write it up as a settlement agreement, you both sign it, and the divorce proceeds as uncontested. You end up with the same final decree a trial would give you, on terms the two of you chose.
Mediation is a poor fit where there has been abuse, or where one spouse hides money or controls the financial information. If mediation does not settle everything, you can still go to trial, usually with fewer issues left for the judge to decide.
We represent clients in mediation and can tell you whether your case is a good candidate.
What If My Spouse and I Cannot Agree?
The case is contested, and the trial date depends on the court’s availability.
In the Stafford, Spotsylvania, and Fredericksburg circuit courts, your attorney gets a trial date by attending a Term Day, which each court holds four times a year. Your attorney tells the court what the case involves, which issues are in dispute, and how much trial time it will need. Other circuit courts in Virginia have their own ways of setting trial dates.
Between filing and trial you may go through discovery, where both sides exchange documents, answer written questions under oath, and sometimes sit for depositions. Discovery produces the records of each spouse’s income, assets, and debts that decide disputes about marital versus separate property or spousal support.
In many local jurisdictions, mediation is usually required before trial. Some couples reach an agreement there after reviewing the evidence and discussing the likely trial outcome with their attorneys.
If your case does go to trial, you can expect a one or two day hearing, depending on the issues left for determination. At the trial, the judge hears testimony and reviews the evidence. Closing arguments are sometimes submitted in writing rather than delivered aloud. Thereafter, the ruling of the Judge becomes your final decree of divorce.
How Long Will My Divorce Take in Virginia?
Uncontested, no minor children, signed agreement: six months of separation, then a few weeks to a couple of months of paperwork.
Uncontested with minor children: one year of separation, then the same few weeks to a couple of months of paperwork.
Settled in mediation: once you both sign the agreement, the uncontested timeline applies: six months or a year of separation, depending on whether you have minor children, then a few weeks to a couple of months of paperwork. Settling before Term Day spares you having to wait the four to ten months for your trial date.
Contested: a year of separation at minimum, and the trial date is typically set for a day at least a year after separation began. Trials are usually scheduled four to ten months out from Term Day. A contested case can take eighteen months to two years from separation to final decree.
How quickly you and your spouse reach agreement, and how complicated your finances are, decide how long the rest takes.
Does My Spouse Have to Sign Anything?
Not for the divorce itself. Virginia does not let one spouse block a divorce by refusing to take part.
A spouse who ignores the paperwork entirely can be defaulted, and the case proceeds without them.
Both spouses do have to sign a settlement agreement, which is a contract. If your spouse will not sign one, the judge decides those terms instead.
Does Having Children Change My Divorce?
The separation period is one year rather than six months, even if you agree on everything.
Custody and support have to be resolved before the divorce is final, either by your agreement or by the court. Virginia courts decide custody on the best interests of the child under Virginia Code § 20-124.3, and child support is calculated from the statutory guidelines in § 20-108.2, based on both parents’ incomes and the parenting schedule.
The court will also want to see that the schedule works in practice, around school, work, and the distance between two homes.
Custody and support are also the terms most likely to need changing later as children grow. Our post on the questions that linger after a Virginia divorce covers what comes after the decree.
Talk With Our Virginia Divorce Attorneys
You can talk to an attorney before you have decided whether to divorce.
Our team at Rinehart Bryant serves families in Stafford, Spotsylvania, Fredericksburg, and the surrounding counties. We will explain your options, estimate how long your divorce is likely to take, and help you through it the way family would.
Contact us to schedule a consultation.
This post is general information about Virginia law, not legal advice. The outcome of your divorce depends on your circumstances, so speak with an attorney about them.
