Are we legally separated?

Posted on Jun 10, 2022 by Katie Carter


A lot of people have questions about legal separation, what it means, and when it actually begins. Oh, and also – why does it even matter?

Being separated is important, because for most grounds for divorce (except for adultery, which technically qualifies you for an ‘immediate divorce’ – but don’t get excited, it won’t be immediate) require that you be separate for the statutory period before your divorce is finalized.

How long is the statutory period of separation in Virginia?

In Virginia, you have to be separated for a year before you can finalize a divorce UNLESS (1) you do not have any minor children (you can have minor children, if they aren’t children of the marriage; and you can have children born to the marriage, just as long as they’re over the age of 18), and (2) you have a signed separation agreement.

If you meet those two criteria, you can get divorced after just six months of separation. Without an agreement, there’s no way to get a divorce quicker than one year. Additionally, if you use fault based grounds (so, cruelty, apprehension of bodily hurt, desertion, abandonment or felony conviction), you’ll also have to separate for the full year before you divorce.

What does legal separation mean?

Legal separation requires no formal paperwork, and no lawyers. It is simply an acknowledgement that (1) at least one of the parties to the marriage has decided to end it, and (2) that the parties are not cohabitating.

To have decided to end the marriage isn’t enough by itself, though it only takes one of you to form that intent. To be a true legal separation, you have to ALSO stop cohabitating.

That mysterious point in time where those two points collide – that one of you has decided to end the marriage and that you stop cohabitating – is when you’re separated. That’s when the clock starts running towards that one year (or six month) legal separation required before your divorce is finalized.

Wait – what’s cohabitation?

It’s a good question! Cohabitation is a fancy legal word we use to describe living together as husband and wife.

It’s something that happens both inside of the home and outside of the home; it’s the way you behave (cooking and cleaning up after each other, that kind of thing) and the way you hold yourselves out in the community (as a married couple).

At the point that you stop doing those things, both inside and outside of the home, you’ve stopped cohabitating. So, although it doesn’t take both of you to form the intent to end the marriage, it does take two to stop cohabitating.

Are we separated?

So, do both of these things exist? Sometimes, people are confused! And now that we’ve established that it matters, it probably matters to you whether specific circumstances in your particular case would show that you’re separated – or not.

There’s nothing to sign, and you don’t have to agree to a particular date in advance – so just the fact that you separated and have done nothing else doesn’t mean you’re not separated. We can back date the separation to the date it actually occurred – you know, so long as that’s the truth. We can’t backdate it to a date a year and a day ago just so we can file; that would be lying, and fraud on the court, and we can’t do that. But, if it’s true that you separated yesterday one year ago, we can date our separation back to that point.

But what if we’re in marriage counseling? I think it’s probably pretty safe to say that you’re not legally separated if you’re in marriage counseling, because that suggests to me that you haven’t formed the intent to end the marriage.

But what if we’re still wearing wedding rings? Again, I think that’s going to be a ‘probably not’, because you’re representing yourselves as married. It’s not necessarily a deal breaker, but it’s an outward sign that you’re at least still willing to work. You’re there, in the marriage, at least in some sense. In a perfect world, you’d take the wedding ring off when you separate.

Same goes for celebrating anniversaries, exchanging gifts, attending church together, and otherwise appearing as a ‘happy couple’ in public. You don’t have to, like, take out a billboard announcing your separation (though it wouldn’t hurt your legal case, that’s for sure), but you shouldn’t just be pretending that everything is fine at home. Representing that you’re separated is important.

But what if we’re… Well, it’s a case-by-case basis, but both of these conditions should exist at the same point in time to demonstrate to the court that you’re separated. The court can’t grant your divorce without being convinced that you are legally separated, so you’ll definitely have to offer testimony to that effect (whether in court or by affidavit, depending) when it comes time to finalize.

There are literally a million different ‘what ifs’, and I’ve heard a lot of them. We can discuss one-on-one, if you like, but ultimately it all comes down to those two factors. Is what you’re doing going to defeat one or the other of them? Then you’re not separated.

There are some general guidelines when it comes to legal separation, but as a general rule I suggest that it’s best to live the way you would if you were separate strangers living in two separate places, regardless of whether you actually do or you’re living separate under the same roof.

For more information or to schedule a consultation, give our office a call at 757-425-5200.