Q & A: Contesting a Divorce

Q: i want to contest the divorce because i dont want a divorce.

A: Ultimately you cannot prevent your spouse from obtaining a divorce in Virginia. However, you do have a right to contest any facts alleged in the divorce pleadings that you genuinely dispute, as well as the right to affirmatively state that you do not desire a divorce, as part of your responsive pleadings to the complaint for divorce filed by your spouse.

The burden will be on the person seeking the divorce to prove the facts that support the grounds upon which they are seeking a divorce be granted. If the basis for the divorce is "no fault" (i.e., having lived separate and apart, continuously, without cohabitation or reconcilliation, for a period in excess of one year, with the intent on the part of at least one party to the marriage that the separation be a permanent one and at least one of the parties desires that a divorce be granted), then the proof required by the court is pretty minimal and only requires the testimony of the party seeking the divorce and one corroborating witness.

Even though the divorce would be granted over your objection, you can have your objection noted on the final decree of divorce or have the divorce decree include a statement that basically states that the divorce is being granted over the objection of wife/husband (as the case may be). Again, this will not prevent the divorce from becoming final or alter the validity of the divorce, but might make you feel a little better to see that language included in the divorce decree. Courts have allowed me to include these types of objections in final decrees whenever I had a client who objected to the divorce on moral and/or emotional grounds in the past.

Please note that your answer to the complaint for divorce, as well as any affirmative relief you are seeking, must be filed within 21 days after the complaint is served on you. Please also note that, despite your objections/contest to the divorce, it is important that you protect all of your legal interests and request the court to award you any and all relief to which you may be entitled should a divorce be granted. Such rights may include, but not be limited to, temporary and permanent spousal support (or reservation of right to same), exclusive use of the marital residence, maintenance of health and/or life insurance, payment of maritals debts, distribution of marital property (including retirement accounts, pensions, or other retirement benefits), attorney's fees, and determination of custody/visitation/child support if you have minor children and/or any disabled adult children.

In order to ensure your rights are protected, I recommend that you consult with a Virginia family law attorney as soon as possible.

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