Bill Divorce Virginia Sample Form

All contested divorce cases will proceed and be set for trial at a Scheduling Conference set through the Divorce Case Tracking Program. If all issues, such as grounds for divorce and distribution of property, are totally uncontested a party may request a Judge of the Court to hear the evidence Ore Tenus (live testimony) without waiting for the Scheduling Conference date or the scheduled trial date. This can be done only after filing, in proper form, the necessary documents and a Request for Ore Tenus Hearing, which are discussed below.

Uncontested cases may also now proceed upon written affidavit of a party and his/her witness, as also discussed below.

I.PROCEDURE

In order for you to obtain a divorce in Virginia, whether contested or uncontested, either you or your spouse must be a resident and domiciliary of the Commonwealth of Virginia for at least six months prior to filing suit. (Virginia Code section 20-97.)

In your Complaint for Divorce you must allege specific grounds upon which a divorce may be granted. The two most common grounds are no-fault divorces based upon either a six- month separation or a one-year separation. You are eligible for a six-month divorce ONLY if you have entered into a written separation agreement and there are no minor children born of the parties, born of either party and adopted by the other, or adopted by both parties. These facts must be stated in the Complaint. In any no-fault divorce you and your spouse must have been separated for the required amount of time PRIOR TO FILING YOUR SUIT. This separation period must also be clearly alleged in your Complaint. You may NOT file your Complaint for Divorce before the appropriate separation period has expired or your case will be dismissed or could be determined to be invalid. If the case is dismissed you will have to file for divorce again and pay another filing fee. A Complaint alleging a “fault” ground for divorce, if supported by the facts, may also be filed. All grounds for divorce are set out in Code of Virginia sections 20-91 and 20-95.

In addition to stating the grounds and residency requirements discussed above, the Complaint must include the following allegations:

current residences of both parties;

the date and place of marriage;

the names and dates of birth of all minor children born or adopted into the marriage;

a statement that both parties are over eighteen (18) years of age; and,

a statement of each party's military status.

(Created by Fairfax Bar Association)

PLEASE REMEMBER

If you proceed pro se you will be representing yourself.

The Clerk and the Court cannot advise or represent you.

Your documents must be typed double-spaced on 8 1/2" by 11" white paper, allowing for 1 ½ inch margins in all four directions.

Printed on only one sided paper.

If you send any documents to the Court, mail them to:

Clerk of the Circuit Court

4110 Chain Bridge Road

Fairfax, Virginia 22030

Attn: Civil Case Intake, Suite 319

If you wish to file documents personally or by any type of hand delivery, please bring them to the Clerk's Office Civil Division counter on the third floor of the Fairfax County Courthouse during regular business hours.

II.PREPARING & FILING YOUR COMPLAINT

A.REQUIRED DOCUMENTS

The Plaintiff (person starting the divorce) must file the following documents:

An original Complaint and one copy of the Complaint. The copy will be used for service. (ATTACHMENT 1A and 1B for examples of Complaints for Divorce)

A completed VS-4 Form. This form is a statistical form that is required for all divorce filings before the divorce can be finalized. It must be completed properly in black ink. (If not attached herein, the VS-4 Form may be obtained from the Clerk's Office) The VS-4 must be legible. It cannot be accepted if there are any white-outs or handmade corrections. (ATTACHMENT 2)

Two copies of the completed “Domestic Case Coversheet” completed with names and addresses of both parties (you must provide your complete address unless the Court for good cause shown orders otherwise), date of separation, and whether you believe this is a contested or uncontested divorce. (ATTACHMENT 3)

Filing fees and Sheriff fees, if applicable. All Filing fees and Sheriff Service fees are paid by cash, certified check or money order payable to the Clerk of the Circuit Court. We also accept Visa or Mastercard with a four percent convenience fee.

(Created by Fairfax Bar Association)

B.INITIAL FEES

Please visit the court’s website at: www.fairfaxcounty.gov/courts/circuit/pdf/ccr-a-20.pdf to determine the filing fees. If you qualify for public assistance or your income is within poverty guidelines, then you might qualify for a waiver of court costs and fees. Fairfax Circuit Court requires that the Petition for Proceeding in Civil Case Without Payment of Fees or Costs be notarized. Please make sure to do so before submitting it to the Court. The form can be found at www.courts.state.va.us/forms/circuit/cc1414.pdf

C.CASE NUMBER

Your case will be given a case number as soon as it is filed. This is the number by which the Court references your case and it must appear on all documents regarding your divorce. The case number will consist of CL, a 4 digit year indicator and the number (e.g., CL-2015-0000001).

D.SERVICE

After you file the Complaint, you must determine how the Defendant will be served with the Complaint (see Section III below).

III.SERVING THE DEFENDANT (person you are seeking divorce from)

WITH THE COMPLAINT

A.SERVICE OF PROCESS

Process in a divorce case may be served on the Defendant by any of the methods specified in Virginia Code §8.01-296:

personal service,

posting on the residence, or

service on a family member of the household at the age of sixteen or older.

Service may be by a Deputy Sheriff or a person authorized to serve process under Virginia Code §8.01-293. If service is by the Sheriff or a Private Process Server you must request the Clerk to prepare a Summons to attach to and be served on the Defendant along with a copy of the Complaint. The Complaint and the Summons are known as the “process” of the divorce action.

A Defendant may also accept or waive service pursuant to Virginia Code §20-99.1:1 by signing a proof of service or an “Acceptance of Service” indicating that the defendant has received the papers in the suit. A Defendant may also waive service of process by filing an Answer to the Complaint.

(Created by Fairfax Bar Association)

B.TYPES OF SERVICE

1.ACCEPTANCE OR WAIVER OF SERVICE:

Pursuant to Virginia Code §20-99.1:1, a Defendant may accept service by signing an Acceptance/Waiver of Service of Process and Waiver of Future Service of Process and Notice - Form CC-1406. This must be signed under oath before a notary public or deputy clerk and it cannot be signed prior to the filing of the suit.

This form can be accessed through the website of the Virginia Judicial System at www.courts.state.va.us/forms/circuit/cc1406.pdf or (ATTACHMENT 4).

2.SERVICE BY SHERIFF:

If the Defendant lives in the Commonwealth of Virginia, a Virginia Sheriff can serve process on the Defendant if the Sheriff's fee is included with the initial filing.

Fee for Sheriff Service: $12.00 for each service

Please allow 3-5 business days for preparation of service

Payment is made by certified check or money order payable to:

Clerk of the Circuit Court

The Sheriff will give the person that is being served a copy of the Complaint and the Summons. The Sheriff will execute the Proof of Service of the process and shall file the Proof of Service with the Clerk of the Court within seventy-two (72) hours of service.

If the Defendant is a non-resident of Virginia, you will need to contact the authorities in the state and locality in which the Defendant resides in order to learn of the local regulations for service. You may wish to have the Defendant accept out-of-state service. This can be done using the “Acceptance/Waiver of Service of Process and Waiver of Future Service of Process and Notice” (Form CC-1406) mentioned above. This must be signed under oath before a notary public and it cannot be signed prior to the filing of the suit.

3.PRIVATE PROCESS SERVICE:

The Private Process Server (if you plan to use a Private Process Server, it is up to you to hire one) will give the Defendant a copy of the Complaint and the Summons. The Process Server will execute an Affidavit of Service and must file the Affidavit with the Clerk of the Court where the matter is pending within seventy-two (72) hours of service pursuant to Virginia Code §8.01-325.

The Affidavit by Private Process Server must include the following:

oA statement that the serving person is duly authorized to make service in accordance with §8.01-293 of the Virginia Code;

oState that the process server or the person serving the process is over eighteen years of age;

(Created by Fairfax Bar Association)

oState that the person serving the process is not a party or otherwise interested in the subject matter or controversy (Virginia Code §8.01-293);

oThe date and manner in which service was made;

oThe name of the party served;

oAn annotation that service was by private process server; and,

oName, address and telephone number of private process server.

oPlease allow 3-5 business for preparation of service

4.SERVICE BY PUBLICATION:

Service of process may be accomplished by an “Order of Publication.” This may be done in cases in which the Defendant is a non-resident or the Defendant’s whereabouts are unknown after you have diligently tried (made all efforts) to locate him or her. Virginia Code §20-104 and §8.01-316, et seq.

The Clerk’s Office maintains a list of newspapers approved for publication in accordance with Virginia Code 8.01-324. An Order of Publication must be published in a newspaper prescribed by the court pursuant to Virginia Code §8.01-317. The number of times that the publication must be in the newspaper is once a week for four successive weeks.

oPlease note that if service is by publication, the only resolution you can achieve is a termination of your marriage and incorporation (inclusion) by the Court of any written agreements reached by you and your spouse. If you have no agreements, the Court can only terminate your marriage but cannot resolve other issues such as custody, support, and property distribution.

Forms for the Affidavit and Order of Publication can be obtained from the Clerk’s Office or can be accessed on the Court’s website at:

www.fairfaxcounty.gov/courts/circuit/orders_of_publication.htm

Documents and Fees Required to complete service by publication:

oOriginal Order of Publication

oAffidavit notarized by Plaintiff stating the following:

the individual is a non-resident of Virginia; or

The individual cannot be found, that due diligence has been used without effect to ascertain the location of the party to be served; or

the individual cannot be served with court process and that a return has been filed by the Sheriff which shows that the process has been in his or her hands for twenty-one (21) days and the Sheriff has been unable to make service.

oAn envelope addressed to the individual being served by publication at the last

known address, if one is known.

oA completed certified mail receipt or registered mail receipt and appropriate fees for such mailing. Certified or registered mail can be sent by the post office and after the person receives what you sent, the post office sends you a receipt.

(Created by Fairfax Bar Association)

oA copy of the pleading to be served by publication.

oCheck payable to the specific newspaper in the amount of $25.00.

oCertified/Registered Mail Fees payable to the Clerk of The Circuit Court by cash, certified check (bank check) or money order.

Certified Mail (Green return receipt card – within the U.S.) $ 5.00 Registered Mail (Pink return receipt card -outside the U.S.) $10.00

For publication in the newspaper you choose, you must submit a check payable to the specific newspaper. If additional fees are required, the newspaper will bill the Plaintiff or counsel.

The Plaintiff must make specific arrangements with the newspaper. The Court will process the Order of Publication documentation, but the Plaintiff will be required to make arrangements to have the documentation delivered to the newspaper for publication.

Upon completion of publication, the publisher will file an affidavit with the dates of publication and a copy of the published order with the Clerk of the Court in accordance with Virginia. Code §8.01-325. Upon receipt of the "proof of publication" the Clerk will complete a certificate of compliance and place it in the case file in accordance with Virginia Code §8.01-317.

If service of the Complaint is made by publication, a court reporter is required at the divorce hearing in accordance with Rule 3:1, unless the Defendant files an answer, waiver or other formal appearance. The Plaintiff is responsible for making arrangements for a court reporter to be present.

5.WAIVER OF SERVICE OF PROCESS

After serving process, the Defendant may choose to waive further notice of the proceedings by executing a waiver form. Again, this can be done using an Acceptance/Waiver of Service of Process and Waiver of Future Service of Process and Notice. A copy of this form is available in the Clerk's Office, can be accessed through the website of the Virginia Judicial System at: www.courts.state.va.us/forms/circuit/cc1406.pdf or ATTACHMENT 4. The form must be signed under oath in front of a Notary Public or Deputy Clerk of the Circuit Court. (Note: The Waiver of Notice cannot be signed by the Defendant prior to the filing of the Complaint.)

(Created by Fairfax Bar Association)

IV. PROCEEDING WITH THE DIVORCE ACTION

A.CONTESTED DIVORCES: A contested case is one in which there is no Separation Agreement or where there are issues for the court to determine, such as spousal support, child support, custody/visitation, and/or equitable distribution. These cases will be placed in the Domestic Case Tracking Program and will be set for trial on all contested issues. These instructions are primarily related to those cases that are proceeding on an Uncontested track.

B.UNCONTESTED DIVORCES: The only cases that may proceed by ore tenus hearing (see IVB(1) below) or via written affidavit pursuant to Va. Code §20-106 (see IVB(2) below) are purely uncontested matters. These are matters where all property, custody, child support and spousal support rights are resolved, and neither party is going to claim any fault grounds for divorce, and where neither party is going to put on any evidence of the facts and circumstances leading to the dissolution of the marriage.

1.ORE TENUS HEARING: If all issues are uncontested, a party may request to have the

Court hear evidence ore tenus. Ore Tenus Hearing Instructions and Request for Ore Tenus Hearing form can be found in

ATTACHMENTS 6, 7A, 7B

A.BEFORE THE ORE TENUS HEARING: At the time the Request for Ore Tenus Hearing is filed, the party filing the Request must submit with the request:

Original proposed Final Order of Divorce (see Section V);

Name Change Order to resume maiden or former name, if applicable;

Original of any Separation Agreement, if applicable (an Original of the Agreement must be given to the Court for a Final Order of Divorce to be granted, if the parties signed an Agreement) ;

Private Addendum containing the parties’ social security numbers;

VS-4 form (completed legibly in black ink and no white out or corrections on form);

Waiver of Notice or Proof of Service, if applicable.

The Final Order of Divorce (see Section V) must contain the endorsement (signature) of each party who is legally entitled to notice of the ore tenus hearing and who will not be appearing at the hearing, unless the moving party (person requesting the hearing) will be serving the proposed order on the other party along with the notice of the date and time of the ore tenus hearing. Notice of the hearing is not required if that party: (1) has signed a waiver of notice of entry of the Final Order of Divorce; or, (2) has accepted or waived service of process and has not filed an Answer in the suit; or, (3) was served by publication and has not filed any papers in the suit other than any waivers; or, (4) has signed a waiver of all further notice; or (5) was served in person and has not filed an answer or other appearance. The original of any Separation Agreement should be presented to the Court before the ore tenus hearing.

(Created by Fairfax Bar Association)