The Difference Between a Divorce and an Annulment in Virginia

Divorce and annulment are two legal decrees that end marriages in the State of Virginia. For the Virginia Circuit Court to grant a petition for divorce or annulment, certain legal grounds must be stated and proven to be true. Spouses who are lawfully wedded can file for divorce upon certain fault or no-fault grounds. Unlike divorce, individuals whose marriages are invalid, or illegal from the point of formation, may petition for an annulment only in limited cases. For example, when a union happened fraudulently or forcibly. In addition to dissolving marital unions, both annulment and divorce proceedings sort out marital concerns over child support, custody, and parenting time (visitation). Generally, these matters are handled by the Juvenile and Domestic Relations District Court rather than the Circuit Court.

What is a Virginia Divorce Decree?

In Virginia, a divorce decree, otherwise known as a Final Order of Divorce, is an official order that dissolves matrimonial bonds. This decree is signed by a judge and bears the terms and conditions of the divorce, as well as the obligations of the former spouses in matters of child custody, visitation, and spousal/child support, among other judicial decisions. A divorce decree is essentially a court document. As such, it is preserved by the Circuit Court that issued the final judgment. Per Va. Code Ann. § 17.1–208, members of the public can generally access these documents except when sealed by law, rule, or order of the courts.

The records contained in documents related to family court include both marriage and divorce records. Both types of records contain information that is considered very personal to the parties involved, and it is recommended that those parties maintain these records with care in order to make changes in the future. The personal nature of these records results in both being considerably more difficult to find and obtain when compared to other types of public records. In many cases, these records are not available through either government sources or third party public record websites.

What is an Annulment in Virginia?

Marital unions are invalidated by annulment in Virginia. To have a marriage legally annulled, there must be proof of circumstances that constitute an illegal (void or voidable) marriage. Otherwise, no Circuit Court judge can issue an annulment decree. Under Virginia law, marriages for which annulment decrees can be issued are either void (null from the point of formation) or voidable (seemingly valid until not). Va. Code Ann. § 20–89–1 identifies 10 legal reasons for annulment of voidable marriages:

• Impotency: either spouse is naturally or incurably impotent
• Duress or fraud: either spouse was forced or fraudulently induced to enter the marriage
• No marriage license
• Felony conviction: one party was convicted of a felony the other spouse is unaware of this status
• Prostitution: one party was a prostitute and the other spouse did not know this status
• A child with someone else: Wife pregnant by another man and unknown to the husband; and husband fathered a child with another woman within 10 months of marriage and unknown to wife
• Mental incapacity or infirmity
• Underage: any party is not of legal age (below 16 years), or between 16 and 18, and married without parental consent
• Marriage based on a sham: either party got married for non-marital reasons, for example, as a bet or to obtain immigration

On the other hand, void marriages do not need to be brought before a judge to be annulled nor require a decree to be issued. These marriages are completely invalid. However, a person may still decide to file for annulment to obtain a decree. Per Va. Code Ann. § 20–38.1, the grounds for annulment of void marriages are:

• Bigamy: one party was already married when the other marriage was contracted
• Incest: spouses who are too closely related to be married, for example, aunt or uncle/nephew or niece, and sibling/sibling

It is necessary to note that these grounds apply only to legal, not religious annulments. The two processes are not the same. While a legal annulment is handled by the court, a religious annulment is handled mostly by the Catholic Church. Parties should also be informed that a religious annulment does not end one’s marriage legally. There may still be a need to request an annulment from a court.

Annulment vs Divorce in Virginia

When a marriage is almost over, the question of whether to get an annulment or divorce comes up. Although the effect of a divorce or annulment is similar, the legal grounds and rights/remedies accorded are not the same. Therefore, one needs to know these differences to make the right decisions.

By annulment, a marital union is reversed, as if it was never contracted. Even though the filing party must establish specific legal grounds, listed above, to get an annulment, there are still conditions within these grounds that must still be met. For example, the court will not order an annulment if the petitioning party continued to cohabit with the other when it was discovered that the grounds for annulment exist. Also, spouses married for 2 years or more before the lawsuit, or persons who were of legal age at the time of marriage although their spouses were not, are not eligible to file for an annulment.

Finally, remedies. When there are children of the marriage, annulment issues such as child custody, child support, and visitation can be decided by the Juvenile and Domestic Relations District Court. However, neither that court nor the Circuit Court can decide alimony or property/debt division.

There are two types of divorce in Virginia:

• Divorce from Bed and Board (a mensa et thoro)
• Divorce from the Bond of Matrimony (a vinculo matrimonii).

The legal grounds for divorce are established under Va. Code Ann. §§ 20–91 and 20–95. In the divorce from bed and board cases, also known as partial divorce or legal separation, these grounds are willful desertion/abandonment and cruel treatment. In the divorce from the bond of matrimony cases, also known as absolute or total divorce, these grounds include adultery, sodomy, or buggery; felony conviction; and separation (faultless divorce). While parties who are granted total divorce or annulment are freed from a marriage and can legally remarry, persons who are partially divorced or legally separated cannot. However, these persons can file for total divorce when one year has elapsed from the date of the separation.

Unlike annulment, individuals who file for divorce can have their marital assets and debts equitable distributed by the court. The court can order spousal support (alimony). Per Va. Code Ann. § 20–95, all parties filing for divorce or annulment must meet the state’s residency criterion: either they or their spouses must have been living in the state for at least 6 months prior.

Persons who qualify for either annulment or divorce, or both, may consider these factors when deciding the legal course of action to pursue. When it is a question of obtaining spousal support or dividing properties equally, a divorce may be the best option as an annulment does not offer such protections or relief. More so, it is important to get legal advice before pursuing any court process.

Is an Annulment Cheaper Than Divorce In Virginia?

Whether an annulment is cheaper than a divorce in Virginia entirely depends on how quickly a case can be resolved and if there is litigation involved, as it is in most cases of annulment. The moment more time is needed or added to finalize a legal process, costs, including attorney fees, will increase. Factors that may cause this include when one spouse contests a case or has to prove the grounds for annulment. Other elements such as conflicts over custody, support, assets, and liabilities may also contribute. In this sense, it is impossible to calculate how much will be spent in dissolving a marriage. However, parties may be able to control costs in some ways such as conducting one’s research; seeking legal advice as it relates to the case, and only for that reason; gathering evidence to support the stated grounds; and agreeing on marital issues beforehand.

What is an Uncontested Divorce in Virginia?

An uncontested divorce in Virginia happens when two spouses agree on the issues of their divorce, such as child support, alimony, assets and debt division, property division (real and personal), and visitation. This agreement must be written and signed by the spouses. Virginia law also regards an uncontested divorce as one in which only one spouse is expected to be involved. That is: when the other spouse does not contest within 21 days after service.

To be eligible for an uncontested divorce, both parties must be continuously separated without cohabitation for 6 months, at a minimum (if there are no minor children), or 1 year (if there are minor children), at a minimum. Both parties must also reside within the state for 6 months prior to the filing. Typically, this kind of divorce is simpler, less time-consuming, and more cost-effective. In Virginia, uncontested divorces take between two to six months to finalize.

Where to Get an Uncontested Divorce Form in Virginia

An expectant divorcee may get forms for an uncontested divorce, otherwise known as no-fault divorce in Virginia, from the courthouses. The courts may require a fee before forms can be released. Forms are also available online via the Virginia Courts’ website or the specific court’s website.

Generally, petitioners will be required to file a petition and serve their spouse. The VS–4 State Statistical Form and Domestic Case Coversheet must be filed too. Persons who cannot pay the filing fees or costs may file a notarized Petition for Proceeding in a No-Fault Divorce Without Payment of Fees or Costs (CC–1414). Other paperwork that will be required includes the Settlement Agreement, Acceptance/Waiver of Service of Process (CC 1406), Private Addendum (CC–1426), and Final Order of Divorce. Interested spouses are advised to find out form requirements of the specific court as this may vary by county. Some courts such as the Virginia Beach Circuit Court and Fairfax County Circuit Court publish online manuals or guides for uncontested divorces.

Per Va. Code Ann. § 20–106 (F), persons involved in divorces where all marital issues are uncontested have another way of finalizing their divorce other than the standard court hearing. This method is called an ore tenus hearing. What this means is that evidence will be taken by deposition or affidavit before a judge, or at a lawyer’s office, and a final order of divorce signed by a judge, if all is as it should be. An ore tenus hearing must be attended by the plaintiff and a corroborating witness, who will testify on the matters of the divorce. Usually, the hearing takes about 10 minutes. To request this hearing, parties may file a Request for Ore Tenus Hearing with the Clerk of Court. Individuals may also be required to attach the following:

• Property Settlement Agreement
• Service of Process of Complaint and Summons
• Final Decree
• Name Change Order
• Private Addendum (including social security numbers)
• Waiver of Notice/Proof of Service
• Fits Program Certificate
• VS–4 form (filled with black ink)

Again, it is important to check the form for the required documents, as it varies by county. Persons filing in Fairfax County Circuit Court have the form and hearing instructions provided for them online. This form is similar across counties, minus one or two additional documents/forms. However, it should be noted that some Circuit Courts in Virginia do not recognize nor allow this method of divorce.

Records that are considered public may be accessible from some third-party websites. These websites often make searching simpler, as they are not limited by geographic location, and search engines on these sites may help when starting a search for specific or multiple records. To begin using such a search engine on a third-party or government website, interested parties usually must provide:

• The name of the person involved in the record, unless said person is a juvenile
• The location or assumed location of the record or person involved. This includes information such as the city, county, or state that person resides in or was accused in.

Third-party sites are independent from government sources, and are not sponsored by these government agencies. Because of this, record availability on third-party sites may vary.

How Do I Get A Copy Of My Divorce Decree in Virginia?

Access to Virginia court records is not governed by the Virginia Freedom of Information Act according to Va. Code Ann. § 2.2–3703(A)(7), but most of the records maintained by the court are open to the public as given by Va. Code Ann. § 17.1–208, including divorce decrees. Paper copies and inspection requests can be made to the Clerks of Court offices for a fee. Records that have been sealed, or of cases appealed to the Juvenile and Domestic Relations Court, are only accessible to the ex-spouses and their lawyers. Common request methods include in-person and mail. Most Clerks of Court have information and forms for requesting records, as well as addresses and contact numbers on their websites. Also, the Virginia Judiciary provides a listing (including addresses, contact information, and hours) of the Clerks of Court. This information is provided on the Individual Circuit Court Homepages site as well.

Divorce and marriage records may be available through government sources and organizations, though their availability cannot be guaranteed. This is also true of their availability through third-party websites and companies, as these organizations are not government-sponsored and record availability may vary further. Finally, marriage and divorce records are considered extremely private due to the information they contain, and are often sealed. Bearing these factors in mind, record availability for these types of records cannot be guaranteed.

How Do I Get a Virginia Divorce Decree Online?

Remote public access to divorce decrees in Virginia is limited. In most cases, these records are not provided by the Clerks of Court online. At best, it may only be possible to search an online index or get basic information (filing dates, names, case status, disposition dates) about a case via the Circuit Court Case Information case management system.