We recently added this link to our website to discuss the courts vis-à-vis a Virginia divorce. As a matter of practice, we accompany our clients on a visit to the court BEFORE the actual date of a hearing. We like to tour the facility with our clients in a relaxed atmosphere so that they can visualize where the case will be heard. While it sounds so simple, it is also nice to know the directions to the courthouse so that there is one less thing to stress about on the actual trial date.
A divorce case is normally initiated when one party files a Complaint for Divorce (or simply, the “Complaint”) against the other party in the Circuit Court for the city where the divorcing couple last lived as husband and wife or, alternatively, where the defendant currently resides. As a quick matter of note, the person filing the Complaint (the person initiating the lawsuit) is the Plaintiff. Naturally, the spouse receiving the Complaint is the Defendant. Who initiates the divorce can have some procedural differences and it can determine who presents evidence first in court, but in most cases, the fact that one party filed first will not mean that that person will win or lose. This is a strategic decision that should always be discussed with an Attorney. This is generally how the process is initiated and where it is initiated.
In Virginia, divorce cases are heard by a judge alone. This is known as a bench trial. There is no such thing in Virginia as a jury trial for divorce matters. It is also important to note that there are other ways to get divorced, but this is by far the most common way to get divorced in Virginia. There is also something known as a Commissioner in Chancery and it is another method for divorce. For example, to have an uncontested divorce heard by a Commissioner in Chancery, the parties must comply with the applicable Virginia Code section and the parties must submit a Decree of Reference to the Clerk’s office. As with all strategic decisions in a divorce case, it is advised to speak with an attorney about the best course of action.
Once the proper filings are made to the clerk’s office in the appropriate Circuit Court in Virginia (if that is the venue chosen by a party), the documents are served on the other party. This is commonly referred to as “service of process.” This can be very complicated and the service must comply with the applicable statutes in the Virginia Code, as well as Court Rules. If service of process is not accurately completed, it can be a bar to a case moving forward until proper service is attained. This is normally fairly routine business for an attorney, but in military cases, serving the other party can be difficult. For example, if a person is stationed abroad, on an IA, deployed, or simply camping out on a military base, serving documents on the other party can be problematic. It can normally be resolved easily, although sometimes with some delay, by a skilled attorney who routinely handles military divorce cases in Virginia.
If the process is initiated properly, then the case can proceed and there is a link on this website about the divorce process that may be helpful in highlighting the general blue-print of a divorce action in Circuit Court. It is important to note that there are filing fees associated with various actions in Circuit Court as well.
Juvenile and Domestic Relations District Court
In some instances, one of the parties may wish to petition the court for custody, or spousal / child support – but that person may not have a basis to file for divorce. In other words, a person may wish to get divorced in the future, but does not yet have a fault or no-fault based ground to file in Circuit Court. This could be because the parties haven’t been separated for the required amount of time or because there simply isn’t enough evidence to prove one of the fault-based grounds. In those instances, a party simply isn’t out of luck – but may be able to petition the court for custody or support in the Juvenile and Domestic Relations Court. This is the lower court – and incidentally, it is also where cases are referred to after a divorce is final for any further action on the case.
Depending on the jurisdiction, filing in the Juvenile and Domestic Relations Court can have delay or timing implications. To make sure that you are filing in the right court and to understand what effect this can have on your case, it is best to consult with an attorney before initiating any action.
The process in the Juvenile and Domestic Relations Court is different than in Circuit Court and the filings are also different. In many cases, the case is initiated by filing a “Petition” for a particular requested relief. Issues of child support, spousal support and custody are among some of the issues that can be heard in the Juvenile and Domestic Relations Court. One similarity to the Circuit Court is that the cases are heard by a judge. There are no jury trials in cases at the Juvenile and Domestic Relations Court. Again, these cases should not be taken lightly. Since this is the lower court, cases that are decided at the Juvenile and Domestic Relations Court can be appealed to the Circuit Court. However, all of this can take many months and be quite expensive. It cannot be stressed enough to seek advice from an attorney prior to commencing actions in court that can be costly, time consuming – and have wide-reaching effects on your family and potentially your children.
About the Judges
Attorneys that practice in the area of Family Law (meaning divorce and custody, among others) routinely appear before the same judges in Circuit Court and Juvenile and Domestic Relations Court. While it is possible to learn things about the judges and their particular likes and dislikes, it is important to remember that judges are human beings too. This sounds overly simple and a matter of common sense. What this means is that your case most likely has a certain level of subjectivity. Depending on how a judge perceives the parties, the witnesses, the facts, the presentation by the attorneys, and perhaps even something in his or her own personal life – can all potentially have something to do with the result in a particular case on a particular day. While most judges are extremely professional and objective, it is important to note that all cases have the human element and it is important to try not to do things that will put a case at any disadvantage. Consulting with an attorney who routinely handles family law matters in the Circuit and Juvenile and Domestic Relations Court is one good way to minimize the disadvantages and maximize the advantages in any case.