                                 CODE OF VIRGINIA

TESTIMONY MAY BE REQUIRED TO BE GIVEN ORALLY; EVIDENCE BY AFFIDAVIT (§ 20-106)

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 the
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 &#xA7;
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. &#xA7; 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 &#xA7; 20-91;

   6. Affirm the affiant&#8217;s desire to be awarded a divorce pursuant to
   subdivision A (9) of &#xA7; 20-91; and

   7. State whether there were minor children either born of the parties, born of
   either party and adopted by the other, or adopted by both parties, and affirm
   that neither party is known to be pregnant from the marriage.

C. If a party moves for a divorce pursuant to &#xA7; 20-121.02, an affidavit may
be submitted in support of the grounds for divorce set forth in subdivision A
(9) of &#xA7; 20-91.

D. A verified complaint shall not be deemed an affidavit for purposes of this
section.

E. Either party may submit the deposition or affidavit 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 &#xA7; 20-91, the plaintiff or his attorney may take and file, as
applicable, the complaint, the affidavit or deposition, 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.

HISTORY: Code 1919, § 5109; 1932, p. 388; 2012, c. 72; 2014, cc. 288, 521;
2015, c. 315; 2016, c. 238; 2019, cc. 133, 237; 2020, c. 900; 2021, Sp. Sess. I,
c. 194; 2023, c. 114.