So you've filed your Complaint for Divorce and your spouse has filed an Acceptance/Waiver of Service form. Now what?
Until recently, divorces in Virginia were always finalized by an ore tenus hearing before a Circuit Court judge. However, in 2012, Virginia Code Sec. 20-106 made it possible for uncontested divorces to be finalized out of court with either affidavits or depositions. Regardless of the method you use to finalize your divorce though, you will need a corroborating witness to either go to the hearing with you or to execute an affidavit or deposition.
A corroborating witness should be at least 18 years old, cannot be your spouse, must be free from mental disease or defect, and must have personal knowledge of certain matters concerning your marriage and separation. It is important to choose someone who has visited your home with some regularity since the date that you and your spouse separated. Below are some of the items that your corroborating witness will need to be able to testify to:
As you can see, it's important that you select a corroborating witness who knows you very well. If the person you choose to be your corroborating witness is unable to testify to having personal knowledge of the matters listed above, the judge may not grant your divorce.
While affidavits and depositions have quickly become the preferred method for finalizing divorces in most Virginia Circuit Courts, there are some judges that still require divorces be finalized by ore tenus hearing. In particular, Middlesex and Pittsylvania Counties are among those that do not currently accept affidavits and depositions.
If your Circuit Court requires divorces to be finalized by court hearing, it's important to know what to expect. First, you will need to get an ore tenus hearing scheduled for your case. In most Circuit Courts, this is done by filing a Request for Ore Tenus Hearing. This is a one-page document signed by the Plaintiff and filed with the Circuit Court Clerk's office that simply asks that your divorce case be scheduled for a final hearing. Usually, the Request for Ore Tenus Hearing is filed at the same time as the Property Settlement and Separation Agreement and the Final Decree of Divorce.
The corroborating witness must accompany the Plaintiff to the ore tenus hearing. Both Plaintiff and the witness will be sworn in and will testify to matters concerning the marriage, separation, and living arrangements of the Plaintiff and Defendant. If Plaintiff is unable to provide a certified copy of his or her marriage certificate, the Plaintiff must also bring a witness who was present at the wedding who can testify to having seen the parties get married. If the corroborating witness was present at the wedding, he or she can testify to this as well.
Note: Although the City of Portsmouth is expected to transition to the affidavit option soon, currently affidavits are only allowed there when the Plaintiff is incarcerated. For all other Plaintiffs, their divorces must be finalized by ore tenus hearing. Additionally, the City of Portsmouth requires the Plaintiff to file a document called a Record of Ore Tenus Testimony Before the Court.
An affidavit is a document that contains statements made by a witness, known as the affiant, which is signed in the presence of a Notary Public. Among other things, affidavits contain a statement by the affiant affirming under the penalties for perjury that the information in the affidavit is true and correct to the best of that person's knowledge or belief. The Plaintiff and the Plaintiff's corroborating witness must each sign sworn affidavits acknowledged by a Notary Public. Then the affidavits are filed with the Circuit Court Clerk.
Traditionally, a deposition consists of questions asked to a witness under oath by an attorney with a court reporter or stenographer present making a record of everything said. However, in the context of a Virginia uncontested divorce, the process of having a deposition taken much more closely resembles the affidavit process explained above.
Generally, the Plaintiff will schedule an appointment with a Notary Public (or other person authorized to take oaths) for the taking of the depositions of Plaintiff and the corroborating witness. Written notice of the deposition time and location is given to the Defendant, although Defendants are not required to attend and rarely do. The Plaintiff and corroborating witness will present the Notary Public with picture ID. After the deposition questions have been asked and the responses have been filled in on the deposition forms, the Plaintiff and corroborating witness sign their own depositions and then the Notary Public signs.
Pursuant to Virginia Supreme Court Rule 4:3(a), within the Commonwealth of Virginia, a deposition can be taken by any person authorized by law to take oaths in Virginia. According to Virginia Code Annotated §47.1-12 a Virginia Notary Public is authorized to administer oaths and certify depositions and affidavits. Thus, any Virginia Notary Public can take depositions on behalf of the Plaintiff and the corroborating witness. However, given that finalizing divorces by depositions and affidavits has only been available since 2012, there are some Notary Publics who are not familiar with the procedure and may not be willing to take depositions.
Rule 4:3(b) also says that in a state other than Virginia, depositions may be taken by any person authorized to take depositions in that state. Rule 4:3(c) specifically states that depositions do not have to be taken by a commissioner. However, Rule 4:3(c) notwithstanding, Isle of Wight County requires that depositions to be taken by a commissioner in chancery of the Circuit Court unless the Court orders otherwise.
Because the affidavits only require the Plaintiff and witness to appear before a Notary Public and sign the affidavits under oath, they are considered more convenient than the depositions, which require the Notary or other person authorized to take oaths to ask the deposition questions to the Plaintiff and witness prior to notarization.
As a practical matter, there isn't a significant difference between finalizing a divorce by deposition or by affidavit. Both allow you to complete your divorce without going to court. Moreover, Virginia Circuit Courts and Court Clerks often use the terms "deposition" and "affidavit" interchangeably. The primary difference is in the format of the two documents.
Note: Currently, Southampton County currently only accepts affidavits, not depositions.
A commissioner's hearing, which is a court hearing before a commissioner in chancery of the Circuit Court, is the least common method for finalizing your divorce. Generally, this is used in contested cases. In order to have your divorce finalized by commissioner's hearing, you will need to file a document called a Decree of Reference with the Circuit Court Clerk's office instead of affidavits, depositions or an ore tenus request.
With your standard DivorceWriter package, you will automatically receive affidavits for the Plaintiff and corroborating witness as well as the paperwork to request an ore tenus hearing if your Circuit Court will not accept affidavits. Additionally, if you (or your Circuit Court) prefer depositions over affidavits, DivorceWriter will provide those to you upon request at no additional charge. DivorceWriter also offers a Decree of Reference free of charge upon request if your Circuit Court requires a commissioner's hearing to finalize your divorce.
In addition to offering all of the forms needed to finalize a divorce in Virginia, DivorceWriter also provides detailed filing procedures that explain how to file documents to finalize your divorce by affidavit, deposition, ore tenus hearing and by commissioner's hearing.
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