COMMONWEALTH OF VIRGINIA
Fairfax Circuit Court
4110 Chain Bridge Road
Fairfax, Virginia 22030-4048
JOHN T. FREY |
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SUZANNE LUBKEMAN |
Clerk of Circuit Court |
703-246-2770 |
TTY 711 |
Chief Deputy |
Dear Circuit Court Patron:
My staff and I are dedicated to trying to provide the best possible service to those using the Court. With this in mind we have worked with the Fairfax Bar Association to develop the attached brochure to help you understand the legal procedures required to obtain a divorce.
This brochure consolidates all of the information that my office can legally provide to the public. If you choose to represent yourself, you will be expected to follow the same procedures as an attorney. Please do not ask court personnel for legal advice or assistance. Court personnel are prohibited by state law from giving you legal advice or assistance. You are strongly encouraged to hire a competent attorney.
You are responsible for preparing all the necessary documents for your case. It should be noted that there are no fill-in-the-blank forms for divorce PREPARED BY OR APPROVED BY THE VIRGINIA COURT SYSTEM. The forms contained in this brochure are those commonly used in the Fairfax Circuit Court. These forms may or may not be appropriate for your particular case. Any desired outcome from your use of the forms cannot be predicted or guaranteed.
The information and materials contained in this brochure are intended to provide users with general information only. It is not intended to constitute legal advice or to replace competent legal representation. In fact, I strongly recommend that you hire a competent attorney to represent you in this matter.
Due to the changing nature of the law, the information and forms contained in this brochure may become outdated. Therefore, you should review and research statutes and procedural rules referenced in the instructions to ensure that they are accurate and current. In no event will the Fairfax Circuit Court Clerk’s office or anyone contributing to the production of these forms and instructions be liable for any indirect or consequential damages resulting from their use.
It is my sincere hope that this information will help make the divorce process easier and less time consuming for you.
Sincerely,
John T. Frey, Clerk
Fairfax County Circuit Court
SERVING THE RESIDENTS OF FAIRFAX COUNTY AND THE CITY OF FAIRFAX
FBA-H-53 Pro Se Divorce Brochure |
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(created by Fairfax Bar Association)
PRO SE DIVORCE SUITS
“Pro se” means that a party to a lawsuit is representing him or herself. All persons involved in divorce cases are strongly encouraged to consult with an attorney so that the legal proceedings and the effect of legal documents and orders can be fully explained to you. If you have children, property, or support issues which need to be decided by the court and which have not been resolved by an agreement, you are not required to retain an attorney, but neither the Clerk’s Office personnel nor the judges’ law clerks can give you advice on how to proceed. If you proceed without legal counsel, you may unknowingly lose rights to custody or visitation, child or spousal support, distribution of property, or other legal claims arising out of your marriage. Furthermore, at trial the same rules will apply as if you had an attorney, and the Judge is not permitted to help you in presenting your case.
If you do not know your spouse's whereabouts, or if he/she is in jail for committing a felony, these are special circumstances which you should also address with an attorney.
“Uncontested divorce actions” are those in which the parties have agreed upon all issues before the court, or those in which it is anticipated that only one side will actively participate. “No-fault divorce” suits are those in which the parties only ask for a divorce on the grounds that they have lived separate and apart for the period of time required by law.
The Clerk's Office cannot make recommendations for specific attorneys, but you can call: The Virginia Lawyer State Bar Referral Service
800-552-7977
Or
The Fairfax Bar Association Lawyer Referral Service
703-246-3780
If you decide to proceed on your own, you will be expected to follow the same procedures as an attorney. If your case is uncontested it may take two to six months to complete your divorce even if there are no complications. If your case is contested, a final hearing will be set at a Scheduling Conference and your case will usually take much longer than six months to complete. One hearing will be set for custody and visitation if there are minor children, and a separate hearing will be set for property division and support.
You are responsible for preparing all documents to be submitted in the divorce. Please DO NOT ask Court personnel for legal advice or assistance. State law prohibits Court personnel from giving you legal advice or assistance.
Before you file for divorce, you may wish to review the appropriate divorce laws in the Code of Virginia. The Code of Virginia books are located in the Fairfax Public Law Library at the Fairfax County Courthouse and at Regional and Community Library locations. The Virginia Code and Rules of The Supreme Court of Virginia are available online at www.courts.state.va.us/courtadmin/library/va.html. A review of these laws may help you better understand the divorce process.
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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.
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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.
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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.
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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;
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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.
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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.)
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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.
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Upon filing of a Request for Ore Tenus Hearing, the file will be forwarded to one of the judges' law clerks to review all of the pleadings, including the proposed Final Order of Divorce and any proposed Name Change Order, to assure compliance with all statutory requirements. The law clerk will send you a postcard or letter with information as to whether all proper papers have been submitted and whether they are correct and complete.
If the law clerk has advised the moving party that the pleadings comply with all statutory requirements, then the moving party must contact the ore tenus clerk within 14 calendar days of the date of the written notice, at (703) 246-4200, to schedule the hearing. If required by law, notice of the date and time of the hearing must be served on the other party. Note: If service of the complaint was made by publication, a court reporter is required at the divorce hearing, unless the Defendant has filed a pleading, waiver or entered an appearance in accordance with law. If the Defendant has filed a pleading, waiver or entered an appearance, a court reporter will not be required. The plaintiff is responsible for making arrangements for a court reporter to be present.
If the pleadings do not comply with all legal requirements, the law clerk will mail a blue Rejection of Ore Tenus Filing form (Rejection Notice – CCR H-49) to the moving party. The moving party will then have a reasonable period of time to correct all deficiencies. Upon making the required corrections the moving party must return the corrected pleadings, along with the bottom half of the Rejection Form fully completed, to the Clerk’s Office. It is not sufficient to simply file or mail the correct pleadings to the office of the Clerk of Court without including the bottom half of the Rejection Form and noting that they are to be forwarded to the specific law clerk that sent the form.
All communications with the Judges’ law clerks must be in writing and limited to the items in the rejection form. Telephone calls relating to ore tenus cases will typically not be received by the law clerks. Furthermore, since the law clerks are not permitted to give legal advice to attorneys or to pro se parties, requests for such advice will not be entertained.
o If the revised pleadings comply with all statutory requirements, the law clerk will inform the moving party in writing and then the moving party must contact the ore tenus clerk within 14 calendar days of the date on the acceptance postcard to schedule the hearing. Your ore tenus hearing must be scheduled for a date certain on a Monday, Tuesday, Wednesday or Thursday at 10 a.m.
o If the revised pleadings do not meet all statutory requirements, or if the moving party has not scheduled the ore tenus hearing within 14 calendar days of the date on the acceptance postcard, the parties may not be able to proceed on the uncontested ore tenus docket.
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Updated December 2015 |
(Created by Fairfax Bar Association)
