6105-D Arlington Blvd. Falls Church, VA 22044 (703) 538-4710
Frequently Asked Questions
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Upon your submission of information through our encrypted form, telephone or fax, we will contact you, and review your situation and necessary documents. Once we have received all necessary information and payment, we will prepare your Complaint and other court papers, have you sign them, and we will then file them with the court. When we have obtained legal service on your spouse, we will file your and your witness's case-specific Affidavits and the Final Decree of Divorce in the Court, and forward you an official certified copy after it has been signed by the Judge. If you and your spouse have a written agreement (a Separation Agreement or Property Settlement Agreement) that is included in the divorce, we will forward your spouse the Final Decree to sign at the time he/she signs the Waiver of formal service of process. Usually your documents may be signed at the first meeting or by mail with proof of identity.
Your case will be personally handled by Cheryl Gardner, an attorney with decades of experience and a high level of knowledge of the complexities of divorce law, including how to protect your interests with a sophisticated property settlement agreement that covers all the legal bases. In using our service you obtain highly knowledgeable counsel at rock bottom prices--our commitment to you, the client. You will find in choosing our firm that you receive the individualized, highly professional and knowledgeable attention, at the low cost you deserve. Give us a try by contacting us without obligation--you will be glad you did.
You should consult one of our Attorneys to determine if you qualify for our uncontested divorce service. Among the minimum requirements are the following:
---> You OR your spouse must be residents of Virginia for at least 6 months preceding the filing of your divorce papers with the court,
---> You must have been intentionally separated* without cohabitation for at least 6 months, have a signed property settlement agreement and no minor children, OR ---> You must have been intentionally separated* without cohabitation for at least 1 year and have no contested spousal or child support, child custody or division of property issues to litigate, or have resolved all such issues by a signed property settlement or separation agreement.
Physical absence for periods of time during the 6 months does not necessarily divest Virginia of jurisdiction if you or your spouse have considered yourself a full-time legal resident of only Virginia, and maintain a Virginia residence (a place to live) or are a member of the armed forces of the United States. Our attorneys can advise you as to whether you may file your divorce in Virginia.
*"Separation" means that you and your spouse have lived in separate abodes the required period of time, and NOT under the same roof during any of that time. It is our office policy not to file any divorce until this separation period has been fully met with the parties living in separate homes.
3) How long do I need to be separated before I can get a divorce? (Return to Top)
Generally, you must have been separated without further cohabitation for 1 year. If you do not have minor children with your spouse and your spouse is willing to sign an agreement, you need only be separated for 6 months to qualify for a Virginia divorce.
"Separation" means that you and your spouse have lived in separate abodes the required period of time and NOT under the same roof during any of that time. "Cohabitation" is not merely sexual intercourse, but includes all manner of acts conducted by married persons to manage their household, including such matters as grocery shopping, child rearing, home maintenance, laundry, paying bills, etc. Separation without cohabitation is a matter of proof, made much more difficult if the couple continues to live under the same roof. For this reason it is our office policy not to file any divorce until the separation period has been fully met with the parties living in separate homes.
4) My spouse and I are still living in the same house, but in separate rooms. Are we considered "separated" for divorce purposes? (Return to Top)
Virginia law requires the parties to be separated without cohabitation for the required period of time. "Cohabitation" does not mean just sexual relations, but includes a variety of actions between people living together: mutual grocery shopping, child rearing, laundry, paying joint bills, preparing meals, doing house cleaning and repairs, lawn care, etc. To prove a couple has not cohabited even while living under the same roof requires additional evidence, almost to the extent a third party must live in the same house the entire time of separation. Because this is a gray area of the law, and because of the evidence needed to prove the separation has been continuous and without cohabitation, many attorneys will not file a divorce case while the parties are still living under the same roof.
5) I am in the military and deployed overseas or stationed outside of Virginia. Do I still qualify for a Virginia divorce? (Return to Top)
Virginia law broadens the residency definition for military personnel: if the client was stationed in Virginia for at least 6 months immediately prior to deployment, or if his/her ship's home port is Virginia, the soldier or sailor is deemed a" resident" of Virginia for purposes of filing for a divorce. The handling of a military divorce in Virginia requires additional knowledge beyond the laws applicable to civilian divorces. For instance, divorce procedures must comply with certain rights of the defendant spouse who is in the active military, under the federal Servicemembers' Civil Relief Act. Division of military retirement pay is subject to different rules, as are alimony and child support
Our office operates under the philosophy we must assist the men and women defending our country, not put additional obstacles in the way of their obtaining divorce services. We routinely handle uncontested divorces for our valued clients serving around the world in the U.S. armed services. We have represented a number of military clients serving in Iraq, Afghanistan, Germany, England, Korea and even in the middle of the Pacific Ocean. After July 1, 2012, Virginia allows Divorce by Affidavit, streamlining this process and eliminating the requirement of a hearing. We will provide our client the necessary Affidavits for him/her to sign, as well as the Affidavit for a witness (a relative or close friend). We can file and conclude your divorce without the necessity or inconvenience of you returning stateside. We will be glad to handle your divorce.
Our work will be done quickly and as fast as possible. If you submit your information online or via telephone, you can in many cases sign your Complaint on the date of your first appointment at our office or by mail. Assuming you meet all the requirements for an uncontested divorce, and your spouse timely signs a Waiver of service of process and notice of further proceedings, we can in most cases file your Complaint, the Waiver, Affidavits and Final Decree in the Court within as little as three business days of the signature of your Complaint. The specific length of time for the Court to sign your Decree depends on factors which are out of our hands, such as the efficiency of the Court itself.
Publication cases are different, and because of required wait times, generally take 2 1/2 to 3 1/2 months to complete. Service by Sheriff (if your spouse refuses to sign and return the Waiver) can take as much as an additional 3 weeks. Attorney ethics require us to refrain from making specific promises about the Court process since it depends on the actions of others not under the control of the attorney. We, however, pride ourselves in providing a speedy convenient service which does not require you attend a court hearing or lose a day from work. Please consult us for a time estimate applicable in your case and have ready if possible any property settlement agreement you might have previously executed.
Yes. Virginia law requires that your separation be corroborated generally through a witness who is not your spouse. This corroboration can be obtained by Affidavit, so you and your witness will not be inconvenienced by scheduling a hearing.
8) Do I have to have a written agreement to get divorced? (Return to Top)
Maybe. If you are filing for a divorce based on a 6-month separation, and have no minor children with your spouse, then Yes, you must a written agreement signed before the divorce papers are filed with the court.
If you are filing for a divorce based on a separation of 1 year or more, even if you have children, then No, you are not required to have a written agreement to get divorced. But you may want one to divide your property or debts, determine child custody and the amount of child support, and/or to determine or waive spousal support (alimony).
A "Waiver of Service of Process and Notice of Proceedings" is a form accepted by the Court. The Waiver is mailed by our office to your spouse, along with a date-stamped copy of the Complaint for Divorce. This Waiver does two things: it Waives formal notice of the divorce case, meaning that the Sheriff does not need to take a second copy of the Complaint to your spouse. This Waiver also waives formal notice of other necessary steps in the divorce case: notice of filing papers with the Court or notice of hearing, again meaning the Sheriff does not need to "serve" upon your spouse a formal notice of these events.
Signing the Waiver is voluntary on your spouse's part. The Waiver should be signed by your spouse, notarized and returned to our office. Once we have that Waiver, we will file the Affidavits and Final Decree with the Court, and await the judge's signature granting you a divorce. If your spouse signs the Waiver, we will send him/her a courtesy copy of the signed Final Decree of Divorce once we receive it from the Court.
If your spouse refuses to sign the Waiver, the only other means of obtaining "service of process" (notice of the divorce case) is to have the Sheriff take a copy of the Complaint to your spouse, or, if your spouse lives outside of Virginia or cannot be found, to publish this notice in the newspaper. These alternate forms of notice will increase the time necessary to obtain a final divorce.
Since its inception, our law firm has had a commitment to provide the highest level of service at an affordable price. Our prices can rarely be matched by our competitors, thereby benefiting the clientele. We charge less because of this commitment, a streamlined efficient procedure, and the sophisticated use of software which reduces our costs. Our prices include our costs incurred for filing the papers with the court, and for sheriff service or publication if needed.
The following charges are included in our fee quotes: court filing fees, sheriff service or publication notice to your spouse, if needed, and attorney and paralegal fees. Deposition cost extra. You will be advised prior to executing a retainer agreement (contract with out office) of any exact costs involved with your case, without obligation, and can decide at that time whether to engage our services.
12) Why don't I have to go to court, when other lawyers tell me a court hearing is required?
As of July 1, 2012, Virginia law does not require a deposition or court hearing for certain uncontested divorces, and you may submit the required "testimony" by written Affidavit instead. For years we have conducted divorces by holding a short hearing in our office, and submitting the transcript to the Court, Instead of having you go to court. The new law allows us to eliminate even this hearing. Because of our years of experience in offering low cost divorces without a court hearing, our office is well set up to transition to Divorce by Affidavit. We developed this service for the convenience of our clients who prefer to avoid a public hearing and also who do not wish to inconvenience their family or friends by attending a hearing, or take excessive time from work.
In the rare situation* where a hearing is required, and if you qualify for our service, you may be able to avoid attending a hearing at the courthouse. A brief deposition of you and a witness (or two witnesses) will be taken by us at the location most convenient to you like: 1) Fairfax County: Our offices (in person); 2) Norfolk: ReportersDot.com (via telephone); 3) Richmond: (via telephone); or 4) Roanoke: Central Virginia Reporters (via telephone). Other locations are available by special arrangement. We are committed to endeavoring to provide you with the best, most convenient, Virginia uncontested divorce service which includes serving those for whom the only practical way to obtain a divorce is using telephonic depositionss. A telephone deposition takes the place of having a hearing in our office or at the courthouse. There is an additional fee for this deposition in order to pay the court reporter and for the transcript.
*Divorce by Affidavit is not available in contested divorce cases, or where one of the parties is incarcerated.
14) Do I need my spouse's consent to obtain an uncontested divorce? (Return to Top)
No. You can get a divorce even if your spouse does not consent. But your spouse has the right to receive legal notice of the divorce case. Service can be accomplished by sheriff for in-state spouses or by publication if your spouse's location is out of state or unknown. If your spouse rather than just not consenting, is contesting the grounds of divorce, division of property, or child custody or support, we will not be able to assist you in a contested divorce, but will refer you to other counsel who do accept such work.
After you have submitted the necessary information on our simple form we will be glad to answer questions particular to your situation. Our attorneys strive to reply to your emails within 24 hours, but our response may be delayed by our duties in court or other matters. You are also invited to call us with any question you may have. Our knowledgeable staff can answer many questions and arrange an appointment for you at a convenient time.
16) Is there a difference between a "Property Settlement Agreement" and a "Separation Agreement"? (Return to Top)
No. These agreements go by many names, but are generally the same. They can be called "Property Settlement Agreement", "Marital Separation Agreement", "Separation Agreement", "Mutual Agreement to Separate", etc. Generally they should include language that the parties have agreed to live separate and apart, have agreed to issues of child custody, child support, spousal support ("alimony"), and division of all marital property, retirement funds and debts. Virginia law has some particular requirements of what should and should not be included in these agreements.
If you and your spouse arrive at such an Agreement, it will need to be signed before we file your papers for a divorce. Also, your spouse will need to sign the Final Decree of Divorce (the court wants to see that he/she knows what is in the Final Decree). We will prepare this Final Decree and forward it to your spouse at the time we forward the Waiver, for him/her to sign and return to us. The Court will retain the original of this agreement in its file, so you may wish to make additional copies.
Some of the reasons a professionally drafted property settlement agreement is highly advisable include but are not limited to when you or your spouse: have or need to declare bankruptcy, own real estate, have retirement funds or a 401K or other pension (including military retired pay), have a securities or investment portfolio, have debts, are in the military service of the U.S., have minor children, are physically or mentally ill, have not worked during the marriage, own a business, have a dispute over possession or ownership of property, purchased assets or had a child after separation. Problems we often encounter in reviewing property settlement agreements drafted by non-attorneys and even some lawyers include by way of example: failure to divide the marital home and/or mortgage properly, failure to divide retirement funds or business assets properly, failure to provide for spousal or child support, failure to assure full financial disclosure, failure to address division of debts and bankruptcy, failure to address continuing ownership of joint properties and other future contingencies, improper inclusion of sensitive identifying or financial data, improperly executed or notarized documents, an agreement which constitutes a contract of adhesion or is otherwise vulnerable as being voidable.
If you desire or need such an agreement, we will be glad to refer you to an attorney who will assist you in drafting and preparing the same.
18) If my spouse and I would like to enter into an agreement settling issues of child custody, child or spousal support, and/or division of property can we do so at any time? (Return to Top)
You can enter into such a settlement agreement at any time before filing or during the divorce case (before the Final Decree is presented to the Court). If you desire or need such an agreement, we will be glad to refer you to an attorney who will assist you in drafting and preparing the same.
19) What does it mean to "incorporate" a property settlement agreement into a divorce? (Return to Top)
A Property Settlement Agreement is a written contract between you and your spouse, and can be enforced in civil court like any written contract. "Incorporating" the agreement into the Final Decree of Divorce gives the contract additional enforcement mechanisms; all the provisions of the agreement become separate orders of court, and can be enforced through the court's contempt powers.
20) Do I have to incorporate my agreement into the divorce? (Return to Top)
This depends upon the language of your agreement. If you have already had an agreement prepared, check it carefully to see if it has to be incorporated into any divorce action or presented to the court. The language of your agreement will control this issue. Many parents may not want their agreements to be incorporated into the Final Decree of Divorce, because Virginia law requires additional personal information be likewise included when issues of child custody, child support or spousal support are included in the final order (personal information such as your and your spouse's names, addresses, telephone numbers, birth dates, employer's names, addresses and telephone numbers, and your, your spouse's and your children's social security numbers).
21) Does the Court require I present any documents to get divorced? (Return to Top)
No. Our experienced staff will tell you precisely what information we need to complete your divorce. We generally ask you provide us with some sort of photographic identification.
After submitting your information on the simple form found on our website, we will be glad to discuss the particulars of your situation with you, and advise you on the best possible course for your divorce. Our free initial consultation can occur only after the potential client has completed the information form at START HERE or submitted the same information via phone to the firm. The attorney cannot advise a potential client of matters particular to him or her without full knowledge of all property (marital and individual) and personal information. The first half hour of the initial consultation shall be without charge; thereafter the attorney may charge for additional time at the attorney's normal hourly fee, and in the attorney's sole discretion. 23) My spouse is in jail. Can I still get a divorce? (Return to Top) Yes. By Virginia law, the court must appoint your spouse a Guardian Ad Litem (attorney) to represent his/her interests, if your spouse is facing more than 1 year of incarceration or has committed a felony. There is an additional charge for this Guardian Ad Litem. He will contact your spouse, forward the Waiver of Service of process to him/her, and explain your spouse's rights to him/her. Please CONTACT US to discuss your situation more fully and our requirements.
Divorce by Affidavit is not available if you or your spouse is incarcerated. The Court will require a short hearing on the issues of the divorce (where each of you live, when you married and separated, etc.), and we will conduct this hearing in our office rather than at the courthouse. After the hearing, we will prepare a written transcript of the hearing testimony, as well as the Final Decree of Divorce, and submit them to the Court for the judge's signature.
Yes. Bernhard & Gardner has represented clients incarcerated in Virginia jails. The client will need at least two witnesses outside of jail who are willing to come to testify at the hearing, and who will act as the client's contact outside of jail. We can make arrangements to send the necessary paperwork to the client in jail, and conduct most of our work through letter or email correspondence. Please complete the information form at START HERE, and our office will be in further contact with you to discuss your situation.
Divorce by Affidavit is not available if you or your spouse is incarcerated.
We provide you full service, personalized attention from our respected attorneys, and generally accomplish your divorce with little hassle and without the necessity of your court appearance, at a price after costs which approximates that of some of the document preparation services. Because of the intricacies of local court practices and the sometimes changing nature of procedural requirements, it is often difficult for persons to handle their divorce without the assistance of a qualified attorney. While it may be relatively simple to file a Complaint it generally must be customized for your individual situation, depending on such factors as whether you have children, are incorporating a property settlement agreement, are requesting child or spousal support, or division of property. We have found that many persons are unable to complete their divorce in a timely manner because of the difficulty in accomplishing all the technical steps of their divorce, including presenting evidence to prove the allegations and the filing of an appropriate divorce decree with a private addendum. While we are not in the practice of evaluating the efficacy of other services, we have seen from past clients who have first tried the online preparation route that they have wasted time and money before having us efficiently and successfully handle their divorce.
Short duration or mistake are not grounds for annulment of a marriage in Virginia. The grounds for annulment in Virginia are limited and include the following examples: the marriage was not performed under a license and solemnized (in non marriage by common law states); either spouse lacked legal capacity to marry due to age or mental incapacity or infirmity; the marriage was the product of fraud or duress; the marriage was entered into prior to the dissolution of an earlier marriage of one of the parties; the marriage is between an ancestor and descendant, or between a brother and a sister, whether the relationship is by the half or the whole blood or by adoption; the marriage is between an uncle and a niece or between an aunt and a nephew, whether the relationship is by the half or the whole blood; either spouse suffers from natural or incurable impotency of body existing at the time of entering into the marriage contract; when, prior to the marriage, either party, without the knowledge of the other, had been convicted of a felony; when, at the time of the marriage, the wife, without the knowledge of the husband, was with child by some person other than the husband, or where the husband, without knowledge of the wife, had fathered a child born to a woman other than the wife within ten months after the date of the solemnization of the marriage; or where, prior to the marriage, either party had been, without the knowledge of the other, a prostitute. Because of the significant difficulty often associated with proving an annulment, it may be a viable option to conduct a divorce instead even if you believe you qualify for an annulment. Bernhard & Gardner does not handle annulments but we will be glad to refer you to other counsel who do accept such work.
27) Will my divorce be considered valid outside the United States? (Return to Top)
Under Virginia law you may obtain a divorce irrespective of the state or country wherein you married. Although some countries will honor an American divorce under the principle of comity extant in international law, other countries may not. If you are seeking a divorce that is valid in another specific country, we recommend you consult with an attorney who is certified to practice law in that country or the applicable local embassy to determine whether your Virginia divorce will automatically be valid, or must be enrolled through a civil process in the foreign country, or will not be recognized at all.
28) What is the best way to get started on my uncontested divorce and what is the process with your firm? (Return to Top) We do not charge for consultations and you are under NO OBLIGATION until such time as you sign a written contract and make a partial payment. The best way to initiate the process with our firm is to CONTACT US with the information we require to process your divorce either ONLINE (via secure SSL encrypted form), by phone or in person so that we are able to determine if you qualify and assist you in an expeditious manner. Because of the efficient use of software, if you have provided us with the required information prior to your meeting with an attorney, you may in most cases sign your divorce complaint on the day of your appointment. Your case generally will be filed in the Fairfax County Circuit Court on the following business day. Irrespective of the county you or your spouse live in, your case can be filed in Fairfax as long as either you or your spouse meet the Virginia residence as well as other requirements discussed previously. We generally file our divorces in Fairfax due to the efficient nature of that venue. Also, unlike many courts, Fairfax seems to retain its civil cases longer, meaning you will be able to obtain a copy of your divorce papers even years after the divorce is final. After filing, if your spouse is willing to sign a waiver of notice, we will send it to him/her. Once it has been returned to us, we will file the necessary Affidavits and Final Decree with the Court. If your spouse is unwilling to sign the Waiver, but his/her location is in Virginia, then we will have serve your spouse with the Complaint. If your spouse resides at an unknown location (and you are unable to locate him/her through the exercise of due diligence) or if he/she resides outside the state of Virginia, then we may satisfy the service requirement by publication. With more than Forty-five years of collective attorney legal experience in the community and our friendly and competent staff, Bernhard & Gardner seeks to become your law firm of choice. CONTACT US FOR THE ATTENTIVE AND COURTEOUS SERVICE THAT YOU DESERVE