Separating in Virginia: What You Need to Know

When a married couple decides they can no longer live together, one option is to separate. Separation is different from divorce – you are still legally married, but live apart.

In some cases, separated couples can’t resolve their differences and the separation becomes permanent. After meeting Virginia’s requirement of living apart for the separation period, you are then eligible to file for a no-fault divorce. Other times, couples use the separation period to work through issues. If they reconcile and resume their marital relationship, the separation period is halted. But if they separate again in the future, that separation period has to start over from the beginning.  

Separating isn’t as final as divorce, so it allows couples to take time and evaluate their relationship. But it’s a big legal step that requires following proper protocols in Virginia. Understanding Virginia law regarding separation can make the transition smoother if a reconciliation isn’t possible. An experienced Virginia divorce attorney can guide you through the process.

How do I obtain a Legal Separation in Virginia?

The short answer is: You can’t because Virginia courts cannot grant legal separation. The only way to end legally a marriage in Virginia is through divorce.

Unlike many other states, Virginia law does not recognize legal separations. The law allows you to file for a divorce a mensa et thoro (divorce from bed and board). A divorce from bed and board is a limited type of divorce that is somewhat similar to legal separation; however, to obtain a divorce from bed and board, you need to have fault grounds: cruelty and reasonable apprehension of bodily harm and/or willful abandonment and desertion. You can read more about divorce from bed and board here. If you do not have legal grounds for a divorce from bed and board, you can still separate by taking the steps necessary to live “separate and apart.”

What does living separate and apart mean?

“Separate and apart” is the term used in the Virginia divorce law. It means that you and your spouse no longer live together as a married couple. Usually one spouse will physically move out of the marital home with the intent for the separation to be permanent (meaning to end the marriage). But, Virginia law does allow married couples to live separate and apart under the same roof as long as they can show that they are really separated.

What do I have to do to show that my spouse and I are separated even though we still live under the same roof?

Whether or not you are separated depends greatly on the facts and circumstances of your case. You will have to demonstrate to the court that you have completely broken off the marital relationship for the purpose of ending the marriage and getting a divorce. While there is no single set of rules to follow, here are a few important steps you can take to help prove you are separated:

  1. Be honest, direct and upfront – tell your spouse you want to separate and intend to get a divorce.
  2. Separate your finances.
  3. Establish separate bedrooms.
  4. Stop all physical intimacy with your spouse.  
  5. Avoid attending family events together.
  6. Stop wearing your wedding ring.
  7. Don’t cook, clean or do laundry for your spouse and don’t let your spouse do that for you.
  8. Inform your friends and family that you have separated.
  9. Complete a written separation agreement.

There is no single definitive way to prove you are separated while living under the same roof. Taking the above steps can help demonstrate your intent to separate. However, even with a separation agreement in place, you still must show that you and your spouse actually lived separate and apart for the required statutory period before filing for divorce. While there is no catchall solution, a written separation agreement serves as very strong evidence that you have genuinely separated your lives. An experienced Virginia divorce attorney can help you guide you through the separation process and create a plan tailored to the facts and circumstances of your case.   

Why is the date of separation important?

The separation date is important since it starts the “separation period” required for an eventual no-fault divorce. You can read more about a Virginia divorce here. As a general rule, you and your spouse must be separated for one year before either of you can file for a final divorce. However, the separation period is reduced to six months if you do not have any minor children together and you have a written separation agreement. You can read more about written separation agreements here. It’s important to remember that if you and your spouse reconcile, the separation clock resets.

Do I have to get a Written Separation Agreement?

Virginia law does not require separating spouses to get a written separation agreement. It’s a good idea for separating spouses to get a written separation agreement. A separation agreement is a legally binding contract that settles all the major issues like spousal support, child custody and support, distribution of property and assignment of debts. Having an agreement provides clarity and avoids conflicts over the major issues. Without an agreement, these matters may remain unresolved during the separation period. Additionally, if you don’t have any agreement, you may spend a great deal of time and money litigating the major issues when you do file for divorce. If you do not have any minor children, a separation agreement can also reduce the separation period from one year to six months. A well-drafted agreement can contribute to a smoother transition during a challenging time in your life.

A Separation Is A Significant Time In Your Life. Let Us Help.

At Bourdon & Tortolero, we know that separating from your spouse can be very stressful. Trying to do-it-yourself can create additional unneeded stress, unnecessarily delay the process and be more expensive in the long run. An experienced Virginia divorce lawyer can guide you through the process, protect your interests and help you achieve the best possible outcome. If you are ready to get started or would like to get more information about a Virginia separation or divorce, contact us here or call us at (703) 440-7820 to schedule an initial consultation with an experienced Virginia divorce attorney.

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