Can I get a divorce after a 6 month separation?

Posted on Aug 2, 2021 by Katie Carter


I get it. If you’ve decided that your marriage is over and you’re ready to get a divorce, you want everything to be over as quickly as possible.

Technically, in Virginia, you have to be separated for a year to get a divorce. There are just a couple of exceptions, but you have to meet specific criteria in order to qualify for a quicker divorce.

Adultery qualifies you for an “immediate” divorce – but don’t get too excited

Technically, the “quickest” route – or, at least, the route that doesn’t require any period of separation whatsoever – is adultery.
But there’s a catch. Actually, kind of a lot of catches.

You have to prove adultery to the satisfaction of a judge, and that’s really hard (and expensive) to do. There’s no such thing as ‘admitting’ to or ‘agreeing’ to a divorce on adultery grounds. You’ll have to go to court and at least litigate your grounds.

You’ll need a corroborating witness, so someone like a private investigator (think: $$$$), the girlfriend herself (if things have gone south) or maybe even a DNA test if the liaison fathered a child.

You can’t get an immediate trial. You probably wouldn’t even be able to be ready for an immediate trial if you could get one, anyway. Trials take time. You’ll want to conduct discovery, at least. And many courts require judicial settlement conferences and other steps before a trial date can even be set, so they don’t make it easy on their end either.

And ultimately it all comes down to a trial, where you have to satisfy a judge that your grounds exist. If you don’t? Well, grounds are required for a divorce in Virginia, so if you can’t prove the adultery with clear and convincing (that’s the standard of proof just below ‘beyond a reasonable doubt’ that is used in criminal cases) evidence, your case could be dismissed.

As a practical matter, we always wait until a year is up anyway because it would be so gosh darn awfully expensive to go to court, put on a whole trial, and have your case dismissed. You’d start over from scratch and have to do the whole thing again, and that’s not a recipe for a happy client at all. You’d be furious, and rightfully so.

So, all that to say, it’s not exactly an immediate divorce.

And does it even yield the best results? In general, I think no. Fault based divorces are always a challenge, both in terms of the time they take and the money it actually costs to litigate. In my opinion, the question is always the same: ‘is the juice worth the squeeze?’ In other words, will you get more of the assets or a better result for taking the more expensive course of action?

Sure, sometimes you have to litigate, and I’d never suggest that anyone should shy away from it. But you also don’t lean into it if there’s no good reason for doing it! You need to know that there’s a reason for it that can’t be achieved in any other way, otherwise, you’re spinning your wheels and upping the ante stress-wise, and what good is that?

Divorce after a six month separation

So, now the question you really came here to ask. If you can’t get an immediate divorce – or just don’t want to go that messy, expensive, contested divorce route – you’re not alone.

Not everyone can get a divorce after just a six month separation, though. You have to meet two criteria.

First, you can’t have any minor children. And second, you have to have a signed separation agreement.

Minor children

At first blush, this looks simple – but there are a few little wrinkles that can sometimes pop up and cause people to ask questions.

You can get a divorce with just a six month separation if your youngest child is 18 or older. You can also get a divorce after a six month separation if you have minor children, but they’re not your husband’s. Usually, this is a stepchild situation – like, that you had a child before you were married, and the child is under 18, but the child is not your husband’s – but it doesn’t have to be. It could be an adultery situation, but then chances are good that we’re probably in hotter water anyway.

Technically, the language is “born to or adopted by the parties”. For separation purposes, these are the children that count. Well, maybe that’s harsh wording. I don’t mean to imply that your other child or children don’t count, because they do. But they count in the best way, because they’re not subject to this divorce, and there’s no custody and visitation of children that weren’t born to you or that you haven’t adopted, so it simplifies things (at least, as far as your divorce is concerned – not necessarily with the man who actually is their father) on the divorce front.

Signed separation agreement

This one looks simple, too. You have to have a signed separation agreement to get a divorce after six months of separation. If you don’t have one and it’s already been six months since you separated, you can’t get a divorce yet. You’ll have to wait until you’ve got an agreement – and then you can finalize at 7 months, 8 months, 10 months, whatever it takes.

If you can’t get an agreement in place, you can litigate a no fault divorce after one year of separation, or, alternatively, you can move forward with the fault based grounds you have as soon as they exist.

In a divorce, there’s rarely a dead end road; there’s just a situation that we have to work around. There’s no such thing as ‘well, too bad, you’ll have to be married forever now’. There’s always a way to get divorced!

Legal Separation in Virginia

It also bears mentioning that you must be separated. In Virginia, you are legally separated when (1) one of you forms the intent to end the marriage, and (2) you stop cohabitating.

At whatever point in time these two things occur together, you are separated. There are no forms to sign and nothing to file with the court; you’re just separated when this happens.

We can date the agreement back to the date that you separated – so, if you separated last month but you don’t get the agreement in place until this month, the clock has already started running towards your six month separation.

If you’re ready for your divorce to be over already, you’re not alone! It’s a crappy experience for most people, so there’s definitely no reason to prolong it if you can move things forward more quickly or effectively. For more information, or to schedule a consultation, give our office a call at 757-425-5200. We can also help you register for an upcoming monthly divorce seminar, where you can learn more about the divorce process in Virginia.