Do people really live together while they’re separated in Virginia?

Posted on Apr 8, 2022 by Katie Carter


Once you decide that your marriage is over, you can’t just end it right there. Legally, there are a whole host of other requirements you have to meet before the divorce can be finalized by the court. Whether you actually litigate your case (meaning, argue it in front of a judge) or whether you reach an agreement, the court will be involved.

In Virginia, you have to separate before you can get divorced. To be separated means that you have to (1) form the intent to end the marriage (which it sounds like you’ve already done! Great!) and then (2) stop cohabitating. Cohabitation is a fancy legal word we use to describe living together as husband and wife. You can read more about cohabitation, if you’re interested, but you can be cohabitating based on things that you’re doing both inside and outside of your home.

Today, though, I’m going to talk about the living situation inside of the home. Most people ask me about separation under the same roof, and it’s true that most people do this. Technically speaking, you should be living, even if you’re under the same roof, the same way you would if you lived in completely separate physical spaces. A good litmus test is to ask yourself, “If I lived in my own apartment and he lived in his, would ________ be happening?” If the answer is yes, then carry on; if the answer is no, though, it’s possible that you’re crossing the lines with respect to cohabitation.

In general, we tell our clients to avoid cooking and cleaning up after each other. Sleep in separate beds. Stop wearing wedding rings. Grocery shop for yourself. Do your own laundry. Basically, STOP taking care of each other in the way a normal, married, non-separated husband and wife might.

The court is going to look at this in a pie in the sky kind of way. It’s black or white; either you’re separated or you’re not. At the end of the day, though, what it will likely come down to – or what it comes down to for most people – is signing a sworn affidavit (meaning that you are under penalty of perjury) that is submitted to the court for an uncontested divorce done by affidavit. Few couples litigate all the way down to the bitter end, and still fewer have to answer detailed questions about the state of their separation.

Does that mean you can lie? Umm, no. Remember, even in an affidavit, you’re under penalty of perjury. So, you have to tell the truth.

Does that mean that no one ever sort of fudges the lines of what the court might consider separation? It’s virtually impossible for me to answer that question, and I would never want to steer you in the direction that would cause you to ‘fudge’ anything that’s going to the court. I have too much respect for our judicial system for that.

But, yes, ultimately, I suppose people DO fudge it, though maybe not intentionally. After all, we don’t live in a perfect world. Does that mean that, if your child’s father comes in during your period of separation, you tell him that he cannot sit and eat with you and the children? Few people would, I think, choose to be ‘separated’ in every possible legal way if that means that it causes harm to their children. Does that mean that you don’t, say, use the same spices in the spice cabinet? I mean, probably not – and, even so, that’d be stretching the boundaries of what even the court intends for you to do. Does that mean that, if his laundry is in the dryer and you’ve got wet clothes in the washer, that you can’t fold it rather than dumping it on the floor – because I did say that you’re supposed to do your own laundry? Probably not.

So, in most cases, I think it’s less a situation where the lines are ‘fudged’ and more just the fact that living separately under the same roof is inherently challenging, especially if you’re trying to keep things amicable. We can do all sorts of things out of spite (hey – you couldn’t do a lot of them if you were living in separate spaces, so maybe it DOES tend to prove that you’re separated?) under the guise of ‘following the rules’, but is that what the court really intends?
It’s hard to say. Mostly, people don’t ask me questions that they don’t want to know the answers to, so I am honestly hard pressed to say how much of this goes on behind closed doors. I imagine a fair amount, but who am I to say?

I think you do the best you can. You don’t cause damage to your children. You don’t act spitefully, because ultimately dumping his clean, dry clothes on the floor for the dog to use as a bed isn’t going to win you any points. In fact, it may run counter to your objectives if you make him so angry that he is determined to litigate rather than resolve your case amicably. If you can’t bring yourself to fold his things – which, fair – you can at least place them somewhere in as minimally disrespectful a way as possible. Or, even, let him know that he needs to come grab his things.

Living separate under the same roof is NOT easy. Despite the fact that most people do it, I think most people would also tell you that its one of the most difficult parts of the divorce process. It’s absolutely not for the faint hearted! You will likely butt heads; likely, you already have been bumping heads, but now it may be worse. Living together with a husband you want to divorce is not for everyone. But it’s also practical, so you may find yourself in this situation no matter what you might prefer.

For more information, or to schedule an appointment to discuss your case with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757-425-5200.