Are we legally separated?


There’s a difference between the way regular, normal, people use the word separated in a sentence and the way Virginia divorce lawyers use the word separated.

I think it’s often a little confusing to reconcile the different understandings of the word. For one, because on each side it seems so clear that everyone seems to assume that we’re operating with the same understanding. After about a decade in the practice, though, I just don’t think that’s true.

We’re “taking some time apart” and “working on our marriage”.

A lot of times, when regular people talk about separation, they’re thinking of something along the lines of “taking some time apart” or “trying to consider all of our options” or “working on our marriage” or “working through some things”.

It often involves the parties taking time – in other words, separating – and really thinking about whether to continue on in their marriage.

In many cases, though certainly not all, it also involves some marriage counseling.

There can also be separate bedrooms, or even a physical separation. One spouse could go to a hotel, to stay with a friend, or to stay with a family member – with or without the children and with or without anything in writing.

To many people, hitting a bumpy patch in the road that leads to one of these decisions to “separate” for a period of time means the same thing, in their mind, as a legal separation.

To a divorce lawyer, though, that’s not accurate.

What’s the difference between being “separated” and a legal separation?

Though there’s not a formal status related to legal separation – like, you don’t have to go down to the courthouse to file anything to declare that you’re separated, or sign a document confirming that you both acknowledge that the separation has taken place – there are some rules.

In Virginia, when you separate, two things happen.

1. You form the intent to end the marriage.

2. You stop cohabitating.

Forming the intent to end the marriage

Only one of you must form the intent to end the marriage, but you still have to have formed an intent to end the marriage. I know, I said that twice, didn’t I? That’s because the whole “intent to END the marriage” thing is pretty absolute.

It’s not a “maybe we’ll take a break and see how we feel” or “let’s try counseling for a bit and maybe try again” kind of situation. Instead, it’s a “This marriage is completely over, and I want out.”

If we’ve formed the intent to end the marriage, does that mean we can’t reconcile later? What if we change our minds?
No, it absolutely doesn’t mean you can’t reconcile. What it does mean, though, is that on the day that you formed that intent, you had no doubt of it. You decided, “that’s it, it’s over, it’s really over this time,” and then you stopped cohabitating. (More on cohabitation in a minute.)

You can certainly change your mind later, and decide to give it another go. That doesn’t mean that your intent wasn’t real intent when you decided earlier that it WAS over; it just means that you’ve come to a different conclusion now. Absolutely fine!

If the two of you change your mind and resume cohabitation, though, you’ll have to follow steps 1 and 2 here (forming the intent, and stopping cohabitation) all over again. You can’t revert back to your original date of separation because both the intent and the cessation of cohabitation were interrupted.

But, by all means, reconcile, if it feels like the right thing to do!

Stop Cohabitating

You are formally legally separated when you form the intent to end the marriage AND you stop cohabitating. It only takes one person to form the intent to end the marriage, but since it must be followed by stopping cohabitation, one spouse can essentially enforce a separation period against the other spouse.

Cohabitation is a fancy legal word we use to describe when you live together as husband and wife. It’s about how you behave both inside of and outside of the home.

As a general rule of thumb, the question you should ask yourself is this one:

Would I be doing this if we lived in completely separate physical spaces and were absolutely strangers to each other?

If the answer is yes, then it’s probably a safe choice. If the answer is no, you may be defeating your argument that you have separated.

There are the obvious things you shouldn’t do – like sleep together, cook and clean for each other, wear wedding rings, celebrate anniversaries, etc. But there are the less obvious things, too. You really shouldn’t be playing the happy couple in public, no matter how embarrassing or uncomfortable. Presenting a united front (by attending church together, for example) makes it look like you’re a married couple rather than a separated one.

So, you see, as far as a divorce lawyer is concerned, these two things have to unite together at a fixed point in time to create your official date of separation. As far as you’re concerned, there may be other steps leading up to this point that feel more or less like a separation to you. Taking some time, physically separating, attending marriage counseling, having a “break” – all of those things are unusual, and certainly not a sign of a healthy marriage. But it’s also not, legally speaking, the same thing as an actual legal separation.

For more information about legal separation, including about how to live separate under the same roof during your Virginia divorce case, or to request information about our divorce book, our divorce seminar, or our confidential consultations, visit our website or give us a call at 757-425-5200.

Filed under: