Can I Get a Default Divorce in Virginia?
Full Question:
Answer:
The public policy of Virginia requires that before a spouse may obtain a divorce, he or she must prove the grounds therefor and no complaint for divorce shall be defaulted, taken for confessed, or granted upon the pleadings or upon uncorroborated testimony. Code Sec. 20-99(1), (2) and (3). We suggest contacting the local clerk of courts to check the status of the service of the divorce complaint and for a copy of the local court rules, which vary by court. In some cases, a request for service by publication may be made.
If the defendant cannot be served (because he cannot be found and a "usual abode" cannot be determined), or if the defendant lives out of state, service of process can be accomplished through a newspaper ad following a court directive called an "Order of Publication." The actual ad is run in a local newspaper. It is likely the defendant will not actually see the ad and still will not be aware that the divorce action is happening. For this reason, the law limits the relief (the assets you can get) that can be gotten in a divorce pursued via an Order of Publication to just the divorce. Alimony, custody, child support, property division, and similar items that are beyond mere "status" of being married/not married, are beyond the power of the court to award if the defendant is "served" via an Order of Publication.
Please see the following VA court rule:
Rule 3:19. Default.
(a) Failure Timely to Respond. — A defendant who
fails timely to file a responsive pleading as prescribed in
Rule 3:8 is in default. A defendant in default is not
entitled to notice of any further proceedings in the case,
including notice to take depositions, except that written
notice of any further proceedings shall be given to counsel
of record, if any. The defendant in default is deemed to
have waived any right to trial of issues by jury.
(b) Relief from Default. — Prior to the entry of
judgment, for good cause shown the court may grant leave to
a defendant who is in default to file a late responsive
pleading. Relief from default may be conditioned by the
court upon such defendant reimbursing any extra costs and
fees, including attorney's fees, incurred by the plaintiff
solely as a result of the delay in the filing of a
responsive pleading by the defendant.
(c) Default Judgment and Damages. — (1) Except in
suits for divorce or annulling a marriage, the court shall,
on motion of the plaintiff, enter judgment for the relief
appearing to the court to be due. When service of process is
effected by posting, no judgment by default shall be entered
until the requirements of Code § 8.01-296(2)(b) have been
satisfied.
(2) If the relief demanded is unliquidated damages, the
court shall hear evidence and fix the amount thereof, unless
the plaintiff demands trial by jury, in which event, a jury
shall be impaneled to fix the amount of damages.
(3) If a defendant participates in the hearing to determine
the amount of damages such defendant may not offer proof or
argument on the issues of liability, but may (i) object to
the plaintiffs evidence regarding damages, (ii) offer
evidence regarding the quantum of damages, (iii) participate
in jury selection if a jury will hear the damage inquiry,
(iv) submit proposed jury instructions regarding damages,
and (v) make oral argument on the issues of damages.
(d) Relief from Default Judgment. —
(1) Within 21 Days. — During the period provided by
Rule 1:1 for the modification, vacation or suspension of a
judgment, the court may by written order relieve a defendant
of a default judgment after consideration of the extent and
causes of the defendant's delay in tendering a responsive
pleading, whether service of process and actual notice of
the claim were timely provided to the defendant, and the
effect of the delay upon the plaintiff. Relief from default
may be conditioned by the court upon the defendant
reimbursing any extra costs and fees, including attorney's
fees, incurred by the plaintiff solely as a result of the
delay in the filing of a responsive pleading by the
defendant.
(2) After 21 Days. — A final judgment no longer
within the jurisdiction of the trial court under Rule 1:1
may not be vacated by that court except as provided in
Virginia Code §§ 8.01-428 and 8.01-623.
Please see the following VA statutes:
§ 20-104. Order of publication against nonresident
defendant. —
In any suit for annulment, for divorce, either a vinculo
matrimonii or a mensa et thoro, or for affirmance of a
marriage, an affidavit shall be filed that the defendant is
not a resident of the Commonwealth of Virginia, or that
diligence has been used by or on behalf of the plaintiff
to ascertain in what county or city such defendant is,
without effect, an order of publication shall be entered
against such defendant by the court, or by the clerk of the
court wherein such suit is pending, either in term time or
vacation, which order shall state the object of the suit
and the grounds thereof, and the order of publication shall
be published as required by law. If the plaintiff in the
suit has been determined to be indigent by the court
pursuant to § 19.2-159, the order stating the object of the
suit and the grounds thereof shall be mailed to the
defendant at his last known address and posted on the
main entrance to the circuit courthouse of the city or
county wherein the suit is filed, and no order
of publication shall be required. No depositions in the
suit shall be commenced until at least 10 days shall have
elapsed after the order has been duly published or mailed
and posted as required by law.
All annulments or divorces heretofore granted in suits
in which the defendant was proceeded against by an order
of publication or of mailing and posting which required the
defendant to appear within 10 days after due publication or
mailing and posting thereof, and in which depositions were
taken less than 15 days, but not less than 10 days, after
such due publication or mailing and posting and in suits
in which the defendant was proceeded against by an order
of publication or of mailing and posting issued on an
affidavit that diligence had been used by or on behalf
of the plaintiff to ascertain in what county or city such
defendant was, without effect, or wherein the order
of publication or of mailing and posting was entered by the
court, are hereby validated and declared to be binding upon
the parties to such suit, when the other proceedings therein
were regular and the annulment or divorce otherwise valid.
The cost of such publication or of such mailing and posting
shall be paid by the petitioner or applicant.
Please see the following VA statute:
§ 20-99. How such suits instituted and conducted;
costs.
Such suit shall be instituted and conducted as other suits in equity,
except as otherwise provided in this section:
1. No divorce, annulment, or affirmation of a marriage shall be granted
on the uncorroborated testimony of the parties or either of them.
2. Whether the defendant answers or not, the cause shall be heard
independently of the admissions of either party in the pleadings or
otherwise.
3. Process or notice in such proceedings shall be served in this
Commonwealth by any of the methods prescribed in § 8.01-296 by any
person authorized to serve process under § 8.01-293. Service may be
made on a nonresident by any of the methods prescribed in § 8.01-296
by any person authorized to serve process under § 8.01-320.
4. In cases where such suits have been commenced and an appearance has
been made on behalf of the defendant by counsel, then notices to take
depositions and of hearings, motions, and other proceedings except
contempt proceedings, may be served by delivering or mailing a copy to
counsel for opposing party, the foot of such notices bearing either
acceptance of service or a certificate of counsel in compliance with the
Rules of the Supreme Court of Virginia. "Counsel for opposing party"
shall include a pro se party who (i) has entered a general appearance in
person or by filing a pleading or endorsing an order of withdrawal of that
party's counsel, or (ii) has signed a pleading in the case or who has
notified the other parties and the clerk that he appears in the case.
5. Costs may be awarded to either party as equity and justice may
require.