The Complaint Begins the Divorce
The complaint is the official first step in the process of your divorce. You may rightfully feel that a lot has happened before you ever file the complaint, but in the eyes of the court and the state of Virginia it begins the divorce. Simply put, the complaint is a document filed with the court that contains information about you, your spouse, the marriage, and why you are getting divorced.
In Virginia, the appropriate time to file the complaint will depend on the type of divorce you are seeking. You can file the complaint immediately if the grounds for your divorce are fault based. That means you are getting divorced because of one of the reasons recognized by the state. Those reasons include adultery, sodomy, buggery, cruelty, apprehension of bodily hurt, desertion, abandonment, or felony conviction. If one of those reasons does not apply, your divorce is called a no fault divorce. In the case of a no fault divorce Virginia requires that you and your spouse are separated for a certain period of time before you can file the complaint. Normally, that period of time is one year. However, if you do not have children that are minors, and you and your spouse signed a separation agreement or property settlement agreement (for our purposes we will call it a PSA), the waiting period is six months. Important note: you can work with your attorney to complete a PSA at any time and do not have to wait six or twelve months to reach an agreement. In fact, you should work to get a PSA as soon as possible with professional help.
Three Sections of the Complaint
Once you are ready to file the complaint it is important to understand what it will include. There are three main aspects to a divorce complaint. First, the complaint will include background information about you and your spouse that allows the court to determine if it has jurisdiction over your divorce. That means you will have to provide information such as your names and addresses, when and where you were married, the ages of your children if you have any, and whether either of you serve in the armed forces. While this sounds straightforward it is important to remember that a court can reject a complaint that does not meet the specific criteria required.
The second aspect of the divorce complaint is particularly important if you are seeking a fault-based divorce. This section of the complaint will include the alleged fault based grounds for the divorce. In other words, you will provide specific factual statements that show the court one of the fault-based reasons applies to your divorce. It is important to understand that at this point you do not have to prove the reason, you just need to state it with some specificity and provide the court any supporting information you have. For example, if the fault-based reason for the divorce were adultery you would not need photographic evidence or an admission for the complaint. It would be enough to provide any details you know about the affair. It is important to include what information you have at this point in the process, but sometimes it will be possible to add or change information later in the process through an amendment to the complaint.
The third and final section of the complaint will include a prayer for relief. That just means you will tell the court what you are asking for with your divorce. This will section will be different for everyone, but it generally includes information about spousal support, child custody, child support, and the distribution of the assets from your marriage.
When you have all of the information gathered to complete your complaint it will be filed with the circuit court for the area where you or your spouse reside. In Virginia, the complaint must also be served on your spouse. Usually that means it will be hand delivered to your spouse by a process server, or sheriff. In some cases service of the complaint will be posted. Either way, once the complaint has been served on your spouse they will have twenty-one days to respond.
The attorneys of Smith Strong, PLC can assist you with filing your divorce complaint. It is important that your complaint meets all of the statutory requirements and includes everything you will be asking for in the divorce. Our experienced attorneys have the expertise to make sure your complaint complies with Virginia law and the foresight to ensure it will accomplish your goals for the divorce. Please call one of our offices at 804-325-1245 (Richmond) or 757-941-4298 (Williamsburg).
References: Va. Code Ann. § 20-91