For many people who are in the beginning stages of contemplating a divorce, one of the first steps is a so-called trial separation. During this time, many things can happen but some of the most common are attending marriage counseling, meeting with pastors and other counselors belonging to the couples’ religious faith, meeting with attorneys, financial planners, and other experts, and just experiencing what it feels like to actually be apart.
The problem is, though, that – for legal purposes, at least, if you’re going by Virginia law – a “trial” separation is not a legal separation.
That’s not to say that you can’t, or shouldn’t, do a trial separation, if that’s what you feel like you need to do. I think it makes sense to take your time, to talk through your options, and, basically, to do everything you can think of to save your marriage or, if you decide to end it, to do it thoughtfully and with conviction.
I wrote about Gwyneth Paltrow a million years ago when she first entered the divorce conversation in the wake of her divorce from Chris Martin; she called it a ‘conscious uncoupling,’ and, though it was sort of widely mocked at the time, I’ve always loved that way of describing it. She has been talking about it again recently and, as you might expect, the conversation has deepened. She said she asked her friends and people she knew whose parents had divorced what was terrible about it, and then she – and her now-ex husband – took steps to correct those mistakes to make sure that their children didn’t suffer in the same ways.
Now, they both speak about each other with respect and even love. I don’t know them, will never know them, but it’s still a beautiful thing to witness. It’s a worthwhile goal to set for yourself, too, if you’re heading towards divorce.
Sure, in some cases, the situation can be traumatic and acrimonious. If you’ve been a victim of abuse, chances are very good that you won’t be able to consciously uncouple in the same way that people in a marriage that was NOT abusive might be able to. I don’t mean to suggest an impossible ideal if it’s unsuitable to your current situation, but I do think it’s important – in the context of this conversation, where we’re talking about a trial separation – to talk about being intentional, setting goals, and using the time (whatever the outcome of your marriage) meaningfully.
Do what you can to save your marriage. If you decide to end it, end it with confidence that you’re making the right decision and even, ideally, with respect for your former partner and the life you once shared.
But, still, a trial separation is not a legal separation, and being legally separated for a period of time – six months or one year – is required by Virginia law before a divorce can be finalized. (With one notable exception: adultery.)
What’s a legal separation?
In Virginia, in order to be legally separated, you must (1) form the intent to end the marriage, and (2) stop cohabitating. Cohabitation is just a fancy legal way we describe living together as husband and wife. To determine whether a couple is cohabitating, we basically ask, “Are they living as strangers, or as partners?” We look at how a couple behaves inside the home and how they represent themselves to friends, family, and strangers outside of the home. Are they cooking and cleaning for each other? Sharing laundry duty? Are they wearing wedding rings? Attending church or parties together? Do they look like – sound like, act like – a couple who is separated and a divorce is pending?
No, that doesn’t mean that you’re obviously fighting or that you uncomfortably involve all of your neighbors in your ongoing drama. It just means you say, “Hey, actually, we’ve separated.” It means you live more like roommates than partners. But it does not require (or even suggest) open hostility. Is that still sometimes the way it goes? Yes. But it doesn’t have to be.
Why does it matter?
Well, you have to be separated to get a divorce. In Virginia, you must be legally separated for one year or six months if (1) you don’t have any minor children, and (2) you have a signed separation agreement. (Note: that’s an “and” statement, not an “or” statement; you must satisfy both requirements.
What about a divorce from bed and board? Can’t it be immediate?
No. You can FILE immediately; you cannot finalize your divorce immediately. You still have to be separated for the full statutory period before your divorce can be finalized.
Divorce from bed and board just allows people using no fault grounds to FILE (and get into court) sooner. There are many reasons you may want to do this, all beyond the scope of this article, but not because your divorce will be finalized any sooner.
Why does a trial separation not count?
Well, I think a trial separation fails on the first count – having formed the intent to save the marriage. If you’re still hoping to reconcile, then, well, you don’t meet that standard.
Can’t we backdate the separation, if we do decide to divorce?
No, because you aren’t separated until both those things exist: (1) you form the intent to end the marriage, and (2) you stop cohabitating. You must be doing both of those things for the time that has elapsed to count, so you can’t backdate your date of separation unless both of those things were true.
You also can’t backdate it if you reconciled. Say, for example, you did form the intent to end the marriage and you stopped cohabitating; you moved back to your parents’ house. But then, you got back together and moved back home. You then later separated again. We can’t backdate to the first date; we can only use the second date, when you finally separated for good. Reconciliation starts the clock over.
You could backdate, though, if you formed the intent to end the marriage, stopped cohabitating, and just didn’t move forward with the divorce for a few years. In this case, both of these things were true – you intended to end the marriage and stopped cohabitating – but you just didn’t take care of it in real time. Lots of people wait and that’s fine, too.
So, of course, do what you can to save your marriage or to leave it with the confidence that you did everything you could before you called it quits. Have a trial separation. But don’t confuse it with a legal separation, because they’re not the same. Still, that shouldn’t dissuade you.
For more information, to schedule a consultation, or to request a copy of our divorce book for Virginia women, visit our website at hoflaw.com or give us a call at 757-425-5200.