How will I prove that we’ve been separated if we’re socially distancing?

Posted on May 1, 2020 by Katie Carter

I’ve talked a lot recently about custody issues amid the coronavirus pandemic, but there are things about all this COVID-19 stuff that affects divorce, too. And that’s important, too!

It’s complicated, it’s challenging, and it’s unprecedented, which means that a lot of the issues we’re facing no one has faced before. Not divorcing people, not attorneys, not judges – no one. And there’s bound to be some variability and some weirdness while we’re all trying to get it right. Even after things go back to normal (will things go back to normal?) it’s going to take some adjusting. Courts aren’t going to just immediately know what to do to address these concerns, and it’s hard for us to know in advance exactly what to tell you about your divorce or custody case and how to adjust. After all, the courts are closed for us, too – emergencies excepted – and we’re getting less facetime with the judges than ever before. Besides, these aren’t emergent issues, so we couldn’t get in front of a judge to litigate even if we wanted to. (Which we don’t – we want to socially distance to flatten the curve, too!) Only emergencies are being judicially determined right now!

What about separation? How do we prove separation when we’re socially distancing?

In Virginia, in order to get divorced, you have to prove that you’ve been separated for the statutory period, which is just 6 months if (1) you have a signed agreement, AND (2) you don’t have any minor children; otherwise, it’s a full year.

Even if you’re sharing a home, you’ll need to be separated. We call it being “separate under the same roof”, and you’ll have to make some accommodations to do it effectively. That’s complicated under the best of circumstances, but it’s especially complicated when you and your husband have been ordered to stay home and no visitors are there.

Typically, we have a corroborating witness who either signs affidavits or actually appears in court to testify that you and your husband have been separated. If you don’t have adult aged children in the home who are able (and WILLING – this is a complicated situation) to testify about your separation, it may be hard to find a witness who really knows. How will judges solve these problems? It’s so hard to say.

What IS clear, though? You’re going to have to live as separate as you can, and as separate as you would have been prior to all this pandemic stuff.

You should live the way you would if you lived in completely separate physical spaces. You should sleep separately, prepare meals separately, shop separately, do your own laundry and cleaning, and so on. Ask yourself, “If I lived in my own apartment, would I do this?” Obviously, it’s not a perfect science. Once, I had a prospective client ask me about sharing spices. It made me laugh a little, but it also made me think that it’s really about as clear as mud. If you were living in a different apartment, you wouldn’t share spices – but we don’t have to get down to that level of specificity. It’s more about the bigger things than the littler ones, and, if you have questions, you should talk to an attorney.

But who can testify that you’ve been separated?

At this point, it’s going to be a wait and see game. I am inclined to think that judges will be flexible – or, at least, as flexible as they can be – and may try to resolve some of these differences by asking additional questions of you and/or your witness. Remember, of course, that the judge is limited by what the statute allows, can doesn’t have the authority to do whatever he or she wants to do just because he or she wants to do it or think it’s fair. The judge only has the authority granted to him or her by the law, and can’t monkey with it but so much. Still, it may be that the are more accepting of certain kinds of testimony than they might otherwise be.

It’s hard to say how this will all pan out; without more information, without more time, and without knowing how similarly situated cases will be handled, it’s hard to say.

For more information, give our office a call at 757-425-5200.