Are we separated already?

Posted on Jan 27, 2020 by Katie Carter

There’s a lot of confusing surrounding separation in Virginia, and, honestly, it’s really no wonder. In Virginia, there’s no such thing as going down to the courthouse and formally filing some document that indicates officially, once and for all, that you and your soon to be ex husband are legally separated.

That would be nice, though, wouldn’t it? But it just doesn’t work that way, as much as you (or I, really!) might wish that it did. And, anyway, it’s not really all that realistic, because, all too often, separated couples – for lack of a better word – un-separate later. Even if you had filed something with the court, that doesn’t mean that you will separate and never reconcile.

Anyway, in Virginia, there’s nothing quite so specific to demonstrate to the court and the rest of the world that you are, in fact, separated.

Are we separated?

In Virginia, you’re separated when two things happen: (1) one of your forms the intent to leave the marriage, and (2) you stop cohabitating.

Yes, that’s right – it only takes one of you to form that intent. But, remember, there’s a second step, too.

What does cohabitating mean?

When you live together as husband and wife, you are cohabitating. It means that you are behind both in the home and outside of it as a couple, and giving the impression to others that you are married.

It means you’ll have to change your behavior. The ending of cohabitation is really the determining factor here, and I can’t understate its importance.

Inside the home, you’ll want to be cooking and cleaning for yourselves – not for each other. You should be sleeping in separate bedrooms, and not engaging in intercourse.

You can be separated living in the same home, or separated living in entirely different physical spaces. For practical purposes, it’s probably safe to say that most people at least start out their period of separation living under the same roof. (It’s just expensive to move out immediately!) Whether you’re living in the same house or living somewhere separate, you should be living the way you would be living if you lived in totally separate physical spaces.

Outside the home, you’ll want to represent yourselves as separated to family and friends. I know it can be uncomfortable to air your dirty laundry in public. No one expects you to discuss the ins and outs of your marriage, but it is a good idea to represent yourselves as separated. You should also display other outward signs that you’re separated – like removing your wedding and engagement rings.

What if we don’t agree on the date?

That happens a lot. Since it only takes one of you to form that intent, there’s often a little bit of difference in the impressions that each spouse has about when the separation actually took place.

We often have a difference of opinion to start, but it’s usually not difficult to resolve. It’s not like it’s a hard and fast or absolute thing anyway; it’s fairly flexible. The cases where there are real difficulties are the ones where the dates of separation are years apart – and that’s unusual.

If you don’t agree today, don’t fret. We work through these issues all the time in divorce cases, and chances are pretty good that we’ll be able to work through it in your case, too.

If we’re in marriage counseling, are we separated?

I don’t think so. At least, I think it’d be super difficult to prove, because if you’re in marriage counseling I think we can assume that neither of you have formally formed the intent to leave the marriage.

Maybe you have, and you’re just going through the motions – I hear that sometimes. But I still think it’d be difficult to prove to the court that this is the case. After all, at some point, you’ll have to testify in front of a judge (under penalty of perjury), so you want to make sure that you’re as accurate as possible.

Why does it matter when we separated?

The period of separation makes up your grounds for divorce in an uncontested divorce. If you’re one of the 99 out of 100 (I may be exaggerating, but not by much) who ends up getting a divorce on no fault grounds, proving that you were separated for a year (or six months if you have no minor children AND have a signed separation agreement) will be critical.

If you can’t prove that you’ve been separated, you don’t have grounds for divorce. You have to have grounds to get divorced and, if you don’t, the judge will have to dismiss any petition that you file. You will have to prove them at some point, if you ever hope to get your divorce!

What should I be doing now so that I can prove that I was separated later?

A great question! Because proving your period of separation is critical. I described it a little bit earlier, but, to sum up, you should make sure that you have a corroborating witness who can testify that he or she knew you and your husband were separated for a year (or six months if you don’t have minor children AND you have a signed separation agreement).

In a typical uncontested divorce, the judge won’t ask too many questions. In fact, in most cases these days, the witness just “testifies” in the form of an affidavit, and answers general questions about when the separation took place, whether you intended that the separation be permanent, and how he/she knew you were separated.

For more information about separation in Virginia or to ask specific questions about your case, give our office a call at 757-425-5200.