Uncontested Divorce in Virginia: The Affidavit Route, Waivers and Default

Virginia has no joint petition and no summary dissolution. Every divorce starts with one spouse's complaint. But when the ground is no-fault separation and you agree, or your spouse doesn't respond, the law lets you skip the hearing: you prove the divorce by affidavit, and the judge can enter the final decree on the papers.

What makes a Virginia divorce uncontested

There's no statutory definition. In practice it means three things:

1. The ground is no-fault. You've lived separate and apart for a year, or six months with no minor children and a separation agreement (§ 20-91(A)(9)).
2. Nothing is left to decide, because you've settled property, support and custody in a written agreement, or the only issue is the divorce itself.
3. Your spouse cooperates or stays silent. Your spouse accepts service and signs the decree, or is served and never answers.

Proof by affidavit

Normally the judge can require testimony in open court. But § 20-106(A) lets a party prove a no-fault divorce "by deposition or affidavit without leave of court" in three situations:

(i) the parties have resolved all issues by a written settlement agreement, (ii) there are no issues other than the grounds of the divorce itself to be adjudicated, or (iii) the adverse party has been personally served with the complaint and has failed to file a responsive pleading or to make an appearance as required by law.

The affidavit has to be based on personal knowledge and cover each point in § 20-106(B). It must:

• support the ground, including that both spouses are over 18 and legally competent;
• say whether either spouse is incarcerated, and give the other spouse's military status;
• affirm that one spouse lived in Virginia as a resident and domiciliary for more than six months before filing;
• affirm that you've lived apart continuously, without cohabitation, intending to stay apart permanently, for the required period;
• say whether there are minor children of the marriage, and affirm "that neither party is known to be pregnant from the marriage."

Two cautions. A verified complaint doesn't count as the affidavit. And if either spouse is incarcerated, no one may proceed by affidavit without the court's leave or the written consent of the incarcerated spouse or a guardian ad litem.

Waiver of service

Your spouse doesn't have to be served by a sheriff. Under § 20-99.1:1, a spouse can accept or waive service by signing a notarized writing, or by filing an answer. The court's form is CC-1406, Acceptance/Waiver of Service of Process and Waiver of Future Service of Process and Notice. In a no-fault case the timing is flexible:

For a suit for a no-fault divorce under subdivision A (9) of § 20-91, any such waiver may occur within a reasonable time prior to or after the suit is filed, provided that a copy of the complaint is attached to such waiver, or is otherwise provided to the defendant, and the final decree of divorce as proposed by the complainant is signed by the defendant.

Read the waiver before signing it. A waiver of future notice means the case can move to a decree without any further papers being sent to you.

A divorce on the papers

When your spouse has waived service and notice, § 20-106(F) lets you file "the complaint, the affidavit or deposition, any other associated documents, and the proposed decree contemporaneously". A divorce "may be granted solely on those documents." Many clerks publish their own instructions for these filings; check your court's before you assemble the packet.

What usually goes in:

• the complaint, cover sheet, and the state's report of divorce form (VS-4);
• your spouse's notarized waiver, with the complaint attached;
• your affidavit;
• the signed separation agreement, if you want it incorporated into the decree (§ 20-109.1);
• the proposed final decree, signed by both of you, with Social Security numbers on a separate confidential addendum (CC-1426), not in the decree itself (§ 20-121.03).

If your spouse doesn't answer

Virginia has no ordinary default judgment in divorce. Rule 3:19, the general default rule, expressly excludes suits for divorce and annulment, and § 20-99 says the case "shall be heard independently of the admissions of either party in the pleadings or otherwise." You still prove the ground.

What silence does change: if your spouse was personally served and didn't answer or appear in time, you can proceed by affidavit, and "no further notice to take depositions or conduct an ore tenus hearing is required to be served on the defendant" (§ 20-99). That shortcut is tied to personal service; it doesn't apply when service was by posting or publication.

If you can't find your spouse

When your spouse can't be located after due diligence, the court can enter an order of publication (§ 8.01-316). The order must give your spouse at least 50 days after its entry to appear, and it's published once a week for four successive weeks (§ 8.01-317). The supporting affidavit is form CC-1435.

Where these sections live

• Va. Code § 20-106 — Testimony and affidavits
• Va. Code § 20-99.1:1 — Accepting or waiving service
• Va. Code § 20-99 — How divorce suits are conducted
• Va. Code § 20-109.1 — Incorporating the agreement
• Rule 3:19 — Default
• Va. Code §§ 8.01-316 and 8.01-317 — Publication