Bill Text: VA HB1945 | 2019 | Regular Session | Comm Sub
Bill Title: No-fault divorce; waiver of service of process.
Spectrum: Bipartisan Bill
Status: (Passed) 2019-02-22 - Governor: Acts of Assembly Chapter text (CHAP0133) [HB1945 Detail]
Download: Virginia-2019-HB1945-Comm_Sub.html
Be it enacted by the General Assembly of Virginia:
1. That §§20-99.1:1 and 20-106 of the Code of Virginia are amended and reenacted as follows:
§20-99.1:1. How defendant may accept service; waive service.
A. A defendant in such suits may accept service of process by signing the proof of service before any officer authorized to administer oaths. This proof of service shall, when filed with the papers in the suit, have the same effect as if it had been served upon the defendant by a person authorized to serve process. In addition, service of process may be accepted or waived by any party, upon voluntary execution of a notarized writing specifying an intent to accept or waive any particular process, or by a defendant by filing an answer in the suit. Such notarized writing may be provided in the clerk's office of any circuit court and may be signed by such party to the proceedings before any clerk or deputy clerk of any circuit court, under oath, or may be drafted and filed by counsel or a pro se party in the proceeding, and shall, when filed with the papers in the suit, have the same effect as if the process specified had been personally served upon the defendant by a person authorized to serve process. For a suit for a no-fault divorce under subdivision A (9) of §20-91, any such waiver may occur within a reasonable time prior to or after the suit is filed, provided that a copy of the complaint is attached to such waiver, or is otherwise provided to the defendant, and the final decree of divorce as proposed by the complainant is signed by the defendant. The court may enter any order or decree without further notice unless a defendant has filed an answer in the suit.
B. When service is accepted pursuant to this section by a nonresident person out of the Commonwealth, such service shall have the same effect as an order of publication duly executed.
C. Any process served outside the Commonwealth executed in such manner as provided for in this section is validated.
§20-106. Testimony may be required to be given orally; evidence by affidavit.
A. In any suit for divorce, the trial court may require the whole or any part of the testimony to be given orally in open court, and if either party desires it, such testimony and the rulings of the court on the exceptions thereto, if any, shall be reduced to writing, and the judge shall certify that such evidence was given before him and such rulings made. When so certified the same shall stand on the same footing as a deposition regularly taken in the cause, provided, however, that no such oral evidence shall be given or heard unless and until after such notice to the adverse party as is required by law to be given of the taking of depositions, or when there has been no service of process within this Commonwealth upon, or appearance by the defendant against whom such testimony is sought to be introduced. However, a party may proceed to take evidence in support of a divorce by deposition or affidavit without leave of court only in support of a divorce on the grounds set forth in subdivision A (9) of §20-91, where (i) the parties have resolved all issues by a written settlement agreement, (ii) there are no issues other than the grounds of the divorce itself to be adjudicated, or (iii) the adverse party has been personally served with the complaint and has failed to file a responsive pleading or to make an appearance as required by law.
B. The affidavit of a party submitted as evidence shall be based on the personal knowledge of the affiant, contain only facts that would be admissible in court, give factual support to the grounds for divorce stated in the complaint or counterclaim, and establish that the affiant is competent to testify to the contents of the affidavit. If either party is incarcerated, neither party shall submit evidence by affidavit without leave of court or the consent in writing of the guardian ad litem for the incarcerated party, or of the incarcerated party if a guardian ad litem is not required pursuant to § 8.01-9. The affidavit shall:
1. Give factual support to the grounds for divorce stated in the complaint or counterclaim, including that the parties are over the age of 18 and not suffering from any condition that renders either party legally incompetent;
2. Verify whether either party is incarcerated;
3. Verify the military status of the opposing party and advise whether the opposing party has filed an answer or a waiver of his rights under the federal Servicemembers Civil Relief Act (50 U.S.C. §3901 et seq.);
4. Affirm that at least one party to the suit was at the time of the filing of the suit, and had been for a period in excess of six months immediately preceding the filing of the suit, a bona fide resident and domiciliary of the Commonwealth;
5. Affirm that the parties have lived separate and apart, continuously, without interruption and without cohabitation, and with the intent to remain separate and apart permanently, for the statutory period required by subdivision A (9) of §20-91;
6. Affirm the affiant's desire to be awarded a divorce pursuant to subdivision A (9) of §20-91;
7. State whether there were children born or adopted of the marriage and affirm that the wife is not known to be pregnant from the marriage; and
8. Be accompanied by the affidavit of at least one corroborating witness, which shall:
a. Verify that the affiant is over the age of 18 and not suffering from any condition that renders him legally incompetent;
b. Verify whether either party is incarcerated;
c. Give factual support to the grounds for divorce stated in the complaint or counterclaim;
d. Verify that at least one of the parties to the suit was at the time of the filing of the suit, and had been for a period in excess of six months immediately preceding the filing of the suit, a bona fide resident and domiciliary of the Commonwealth;
e. Verify whether there were children born or adopted of the marriage and verify that the wife is not known to be pregnant from the marriage; and
f. Verify the affiant's personal knowledge that the parties have not cohabitated since the date of separation alleged in the complaint or counterclaim and that it has been either party's intention since that date to remain separate and apart permanently.
C. If a party moves for a divorce pursuant to §20-121.02, any affidavit may be submitted in support of the grounds for divorce set forth in subdivision A (9) of §20-91.
D. A verified complaint shall not be deemed an affidavit for purposes of this section.
E. Either party may submit the depositions or affidavits required by this section in support of the grounds for divorce requested by either party pursuant to the terms of this section.
F. In contemplation of or in a suit for a no-fault divorce under subdivision A (9) of §20-91, the plaintiff or his attorney may take and file, as applicable, the complaint, the affidavits or depositions, any other associated documents, and the proposed decree contemporaneously, and a divorce may be granted solely on those documents where the defendant has waived service and, where applicable, notice.
