You and your spouse don’t have to agree to get a divorce. You can contest a divorce he seeks, disputing information in his court petition. In the alternative, you can consent to the divorce to make the process quicker. No matter how you choose to respond, your spouse must provide proper notice of the pending divorce action or a Virginia court will not grant the divorce. However, if you cannot be located, the court may allow your spouse to serve you by publication in a newspaper. In this case, your spouse could get a divorce without your knowledge.
Virginia law requires courts to observe a defendant’s due process rights in any legal action. Due process means you, as the defendant in your spouse’s divorce lawsuit, have the right to be notified about the pending lawsuit and the right to defend yourself. Virginia law establishes procedures intended to make legal processes fair for both parties. A Virginia court does not issue decisions until the procedural protections have been followed.
One way Virginia law provides due process is by requiring the plaintiff to serve the defendant with a copy of the divorce papers. Your spouse can have a process server or a local sheriff serve you. If you are willing to accept service by having the documents mailed or by going to the court to accept the documents, your spouse will not have to have you served. Any of these methods give you the opportunity to see the lawsuit against you and respond if you choose.
Service by Publication
If your spouse does not know where you live, he may be permitted to serve you by publication, but only as a last resort. If your spouse receives permission from the court to serve you by publication, it is possible you won’t know about the divorce. Virginia, like most states, allows service by publication to ensure that people can get divorced even when their spouse’s whereabouts are unknown.
If your spouse correctly serves you with the divorce paperwork, even if the service is done via publication, he can proceed with his case. If you do not respond to the divorce petition, the court likely will issue a divorce decree and conclude the case without your input. This is called a default judgment and it usually means your spouse will get whatever he asked for in the divorce petition. It is difficult to reverse a default judgment after it has been issued and there may be a high burden of proof if you seek to have it reversed.
References & Resources
- The Free Dictionary: Due Process of Law
- Fairfax County Virginia: Divorce Information
- Law Help: Legal Services of Northern Virginia: Divorce in Virginia
- Virginia General Assembly: Legislative Information System: 8.01-320
- Virginia General Assembly: Legislative Information System: 8.01-296
- Legal Services of Northern Virginia: The Difference between Void and Voidable Judgments in Virginia
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