Are we legally separated?

Posted on Jun 28, 2021 by Katie Carter

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.

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.

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.

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, crueltyapprehension of bodily hurtdesertionabandonment 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 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.