Virginia Marital Settlement (Divorce) Agreement

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Updated May 17, 2022

A Virginia marital settlement agreement is used by spouses entering the divorce process to communicate to the court how they’d like to divide property, assets, debt, child custody, child support payments, alimony, and all other shared responsibilities. In Virginia, the execution of this document can be used by couples without minor children to reduce the obligatory separation period by half (from a year to six months). The legally binding document should be reviewed by separate legal counsel if possible and signed by both parties before a notary public. Without the agreement in place, the court will settle all issues of the case as they deem just and fair.

Table of Contents

Divorce Laws

Statutes – Title 20, Chapter 6 (Divorce, Affirmation and Annulment)


Alimony (§ 20-108.1(a)) – Spousal support (alimony) paid from one (1) spouse to the other will be determined case-by-case, using the relevant evidence brought forth to the judge.

Alimony Calculatorcalculators.law

Child Support (§ 20-108.1(b))) – In determining the amount of child support each spouse must pay, the court will apply the guidelines found in § 20-108.2. However, in situations where the court finds adherence to the guidelines to be unjust based upon the facts of the case, they will give a justification as to why the order varies from the guidelines and list relevant evidence, including the following factors:

  • Custody arrangements and cost of travel for visitation purposes
  • Support of other family members
  • Imputed income to a voluntarily unemployed or underemployed receiving party
  • Additional child care costs due to a custodial parent attending a program that will improve the parent’s earning capacity
  • Debts from the marriage for the child’s benefit
  • Court-ordered payments for life insurance, education expenses, and the like for the child’s benefit
  • Exceptionally large capital gains (e.g., sale of home)
  • Special needs of the child
  • The child’s independent financial resources
  • Standard of living during the marriage
  • Each parent’s financial situation
  • Marital property under § 20-107.3 that earns, or could earn, income
  • Tax consequences
  • Provisions of a marital agreement or like document that details the amount of child support
  • Any other factor needed to ensure a fair payment plan

Child Support Calculatorvasupportcalc.com

Division of Property (§ 20-107.3) – The court will determine upon request of either party the division of property, whether the property is marital or separate, and the nature of all debts. As Virginia has adopted equitable distribution law, the court will distribute marital property and debt as they deem fair, and not necessarily equally (as in fifty-fifty). The court will take the following into account when considering the division of property and debt, the amount of any monetary award, the apportionment of debt, and the manner of payment:

  • Each spouse’s contributions to the family, financially and otherwise
  • Each spouse’s contributions to the care and acquisition of marital property
  • Duration of the marriage
  • Condition and age of both parties
  • Actions or inactions that lead to the divorce
  • Date and time that marital property was acquired
  • The manner in which marital property was acquired
  • Debts and liabilities of both parties
  • Whether the marital property is liquid or nonliquid
  • Tax consequences of each spouse
  • The spending or using of marital property for nonmarital purposes
  • Any other factors necessary to arrive at an equitable decision

Grounds for Divorce (§ 20-91) – A couple may get a divorce from the bond of matrimony in Virginia on the following grounds:

  • Adultery, sodomy, buggery committed outside of marriage
  • Bodily harm, cruelty, desertion (one (1) year waiting period following act required)
  • Conviction of a felony and imprisonment for at least one (1) year, after which point the couple does not cohabitate
  • Living separately for a period of one (1) year or more
  • Living separately for a period of six (6) months or more when the couple has entered into a settlement agreement and has no minor children

In Virginia, there is also a process called a “divorce from bed and board” wherein the couple gets legally separated without the option of remarrying another person outside the marriage until divorce from the bond of matrimony is complete. The grounds for divorce from bed and board are cruelty, causing bodily harm, willful desertion, and abandonment.

Interim Support (§ 16.1-278.17) – Pendente lite proceedings may take place to award temporary financial support to a requesting party to be paid for the duration of the divorce action by the other spouse.

Residency (§ 20-97) – No divorce will be granted unless one (1) of the parties has been a resident of Virginia for a period of at least six (6) months.

Separation (§ 20-91(9)(a) – To file for a no-fault divorce, couples have to be separated for a period of at least one (1) year. Those who have no minor children and a property settlement agreement in place will be able to get a divorce after six (6) months of separation. A no-fault divorce is a divorce wherein neither party has committed a felony, abused the other, or committed any form of adultery. 

How to File for Divorce in Virginia

Divorce Forms

There are no official court forms for divorce in Virginia; therefore, it may be difficult for residents to effectively and confidently file on their own. While it is possible to draft the below documents without the help of a legal professional, it is highly advised that both spouses seek the assistance and advice of an attorney to ensure all documents are accepted.

Uncontested Divorce (with/without children):

The below instructions are not intended as legal advice and serve only to outline the Virginia divorce process. The exact filing process and divorce forms vary from county-to-county. Couples should contact their local Circuit Court to verify the exact filing order and court documents required.

Step 1 – Qualifications and Settlement Agreement

To file for an uncontested, no-fault divorce in Virginia, a married couple must have lived separately for a period of at least one (1) year. If they do not have children, and they have drafted a Property Settlement Agreement (see below), the separation need only be six (6) months. Couples must also agree on every aspect of the marriage including child support, property division, alimony, and custody. The above-linked settlement agreement can be used to negotiate and state the agreed-upon terms. Both parties should seek legal representation when completing such a document. They must also both sign the form and have it notarized.

Step 2 – Complaint

Provided that the spouses qualify for an uncontested divorce, they can begin the filing process. This process can be initiated with the plaintiff (filing party) drafting a Complaint for Divorce. The complaint must allege the grounds for divorce, the fulfilled residency and separation requirements, the existence of a settlement agreement,  and the personal information of both parties. As there are no prescribed court forms one can fill out on their own, the plaintiff will be required to draft a complaint that will be deemed acceptable by the court. Legal counsel is strongly advised.

Step 3 – Filing 

The plaintiff must file the complaint at the Circuit Court with a Cover Sheet for Filing Civil Actions (county-specific form may be necessary) and pay the filing fee (~$90). They can attempt to waive the filing fee and all other court costs with the Petition for Proceeding in Civil Case Without Payment of Fees or Costs (some counties may require notarization). Depending on the county, the plaintiff may also need to submit a State Vital Statistics VS-4 form at the time of filing the complaint; other counties require this later in the filing process.

Step 4 – Service on Defendant

The complaint must be served on the other spouse, the defendant. This service is usually accomplished by a sheriff or a private process server in the methods described in § 8.01-296. If the sheriff or a process server is used, the plaintiff will be required to ask the clerk upon filing the complaint to attach a copy of a summons thereto. They’ll also be required to pay a fee at the courthouse if requesting service by sheriff, and they’ll be required to locate and compensate the private server if they choose not to use law enforcement. With payment and the court documents in hand, the sheriff or process server will personally serve the papers on the defendant at their residence. If the defendant is not present, the complaint and summons will be left with a member of the household who is at least sixteen (16) years of age. Alternatively, they may post the forms on the front door and mail copies by certified mail. Proof of service (or an Affidavit of Service) will be completed by the server and filed with the court within seventy-two (72) hours.

If the above service methods are not possible, service by publication can be attempted. Plaintiffs will need to contact the clerk of court at their local Circuit Court to obtain a list of accepted newspapers and to gain more information on how this type of service is carried out in their county. Generally speaking, this method is used when the defendant’s whereabouts are unknown, or they are not residing in Virginia.

If the defendant wishes, they can choose to waive the service altogether by signing the Acceptance/Waiver of Service of Process and Waiver of Future Service of Process and Notice before a notary public or court clerk. The execution of this document negates the need to hire a third party to deliver the documents and communicates to the court that the defendant does not need any notice or further documents concerning the divorce case. More often than not, this waiver will be signed in the case of an uncontested divorce.

Step 5 – Defendant’s Answer

In uncontested, no-fault cases, the defendant will usually sign the above-mentioned waiver as there is a settlement agreement in place and they agree with all statements made in the complaint. If they choose to contest the case, they may file an Answer with the court within twenty-one (21) days, accepting or refuting any of the claims in the complaint. If they have not signed a waiver of service and they do not respond to the complaint within the twenty-one (21) days, the case can continue uncontested.

Step 6 – Final Order of Divorce

A Final Order of Divorce will need to be drafted to reflect the information in the complaint and Property Settlement Agreement. If the defendant signed a waiver of service, they won’t need to sign the Final Order of Divorce. Depending on the county, a VS-4 form may need to be completed and filed with the Final Order of Divorce at this point also.

Step 7 – Affidavits/Deposition/Court Hearing

The manner in which uncontested divorce cases are settled varies between counties; some require a hearing before a judge, while others can be accomplished through the submission of an affidavit or evidence from a deposition. One must contact their Circuit Court to find out their local procedure.

  • Affidavit
    • If the case is uncontested, filed on the grounds of separation, and has a settlement agreement in place, the couple may be able to file an Affidavit instead of going to a hearing. They’ll need to affirm that they wish to get divorced, that all statements in the complaint are true, and that they have lived separately for at least one (1) year. A witness of at least eighteen (18) years of age will have to submit a Witness Affidavit as well. Both affidavits will need to be notarized then submitted to the court for review along with the settlement agreement and Final Order of Divorce.
  • Deposition
    • Some counties allow for evidence to be gathered by deposition at an attorney’s office. The deposition will be recorded then printed out. The written deposition, the Final Order for Divorce, and the settlement agreement will then be submitted to the court for review.
  • Court Hearing
    • In many counties, uncontested cases must be heard before a judge. If this is the case, the plaintiff will need to request a hearing (sometimes called an Ore Tenus Hearing) at the time of submitting their Final Order of Divorce and settlement agreement. A hearing date will be scheduled, and notice will be sent to the plaintiff. If the defendant signed the waiver of service, they will not need to attend the hearing. At the hearing, the plaintiff and a corroborating witness will be required to testify to the contents of the complaint.

Step 8 – Review of Divorce Forms

The judge will review the contents of the deposition, affidavit, or testimony, as well as the settlement agreement and Final Order for Divorce. If everything seems to be agreeable, they’ll sign the order finalizing the divorce. Either party will be able to request a copy of the order by mail or in-person.

Step 9 – Name Change

Either party can ask to have their previous name restored during the divorce proceedings. The request for the name change will need to be included in the complaint, and often a separate name change order will need to be filed as well. Most of the time, this process is used to restore a maiden name. A copy of the Final Order for Divorce with the restored name can be used to change any identification or accounts.

(Video) – Virginia Marital Settlements, Explained