What Type of Divorce is the Right Fit for You?

Whether it was a long time coming or a complete shock, learning the different types of divorce will help you plan your next steps.

In Virginia, there are seven different types of divorce:

1. uncontested;
2. contested;
3. no-fault;
4. fault;
5. collaborative;
6. mediated; and
7. litigated.

Uncontested vs. Contested

An uncontested divorce occurs when parties agree about the distribution of their property, spousal support, child support, custody and visitation, the grounds for divorce, and all other matters without seeking court intervention. Parties will need a signed marital settlement agreement delineating the terms of their resolution for an uncontested divorce filing.^[1]

On the other hand, a contested divorce indicates that there are issues the parties have not been able to settle. In a contested case, the court is asked to make determinations about the issues arising out of the parties’ separation and the grounds for divorce. It is important to note that even though you begin the divorce process in a contested posture, this does not mean you must fight to the finish. A contested divorce can be easily converted to an uncontested divorce once a settlement agreement has been signed.

Fault vs. No-Fault

When one petitions the court for a divorce, they must state that they are filing based on fault or no-fault grounds.

There are several fault bases for divorce:

• Adultery, Sodomy, or Buggery
• Cruelty
• Willful Desertion or Abandonment
• Conviction of a Felony

If any one of these bases exists, you can file for divorce at any time based on fault grounds.^[2]

Alternatively, you can file for divorce on no-fault grounds. To file a no-fault divorce, you and your spouse must live separate and apart, without cohabitation, for a period of either one year or, if a couple has a settlement agreement and does not have minor children, they may file for divorce after just six months.^[3]

Whether you should file based on fault or no-fault grounds will depend on the nature of your case, as it could impact the ability of a guilty spouse to receive spousal support and also impact how the assets are distributed. To make an informed decision, you should consult with an experienced attorney in your area.

Collaborative Divorce

If litigation is something you want to avoid, Collaborative divorce may be the right fit for you.[4] A Collaborative divorce is a voluntary process in which both parties and their respective lawyers, agree to settle disputes out of court. In fact, a Collaborative participation agreement will be signed by the parties at the beginning of the Collaborative process that will prevent either party’s attorney from representing either party in litigation if collaboration efforts fail.

Not only do the parties and their attorneys work together, but they also may collaborate with other professionals, such as financial planners and mental health advisors. These professionals can help devise fair and functional terms for the dissolution of the marriage.

Mediated Divorce

A mediated divorce entails hiring a neutral third-party to serve as the go-between for each side to negotiate settlement terms.

Mediation is not like litigation because it is not held in court, and no judge or jury will decide the facts of your case. Instead, it is a more informal process wherein a professional mediator guides the parties to an amicable solution. Although it is not mandatory, parties engaged in mediation should each hire an independent attorney to represent them during mediation, since the mediator must remain neutral and is not allowed to give legal advice or represent either party in court.

Despite people’s best efforts, sometimes negotiations fail, and parties are left with only one other option.

Litigated Divorce

The final type of divorce is litigation. While Collaborative divorce and mediation take place outside of the courtroom, a litigated divorce requires parties to present testimony and evidence in court for a judge to determine the division of the parties’ assets and liabilities, spousal support, child support, child custody, and any other disputed matters.

Though Collaborative and mediated divorces are inherently voluntary, litigation involuntarily forces parties to participate in the divorce, regardless of whether a party wishes to dissolve their marriage or not.

Litigation is expensive and time-consuming, as it requires many months of preparation. However, some matters are too important, contested, or complex for the parties to resolve by other methods, and they need to have a judge decide who should get what and for how much.

Deciding which type of divorce is best for you can be tricky. If you are looking for legal advice or for an attorney to represent your interests in your divorce, our experienced family law attorneys at Briglia Hundley® can help. Contact us to schedule an initial consultation today.

 

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[1] Va. Code Ann. § 20-155 (2024).

[2] Va. Code Ann. § 20-91 (2024).

[3] §20-91(9)(a).

[4] Uniform Collaborative Law Act, Va. Code Ann. §§ 20-168-20-187(2024).