I’m on a lot – like a LOT – of mom groups on social media and one thing they always seem to ask a lot about is divorce and child custody.
While I understand it, because actually scheduling an appointment to speak with an attorney and then doing it is both intimidating and expensive, I also cringe a bit when people do, mostly because of all of the ludicrously wrong answers they’ll receive.
I walk a fine line between trying to make sure that people have the information they need to make big decisions and not becoming unnecessarily combative with random internet strangers. That’s not a good look on anyone.
But, yesterday, I came across a question about separation – and, specifically, receiving a separation agreement from a husband – and the answers were many different shades of wrong. I wanted to specifically address legal separation and separation agreements here, too, to help make sure that you – if you’re looking for up to date, Virginia-specific information about separation and divorce – have all the information you need to make big decisions about your future.
What is separation?
In Virginia, you have to be separated before you can finalize your divorce (unless you prove adultery, after which you could – theoretically at least – get an immediate divorce). You must separate for a period of one year or, if you (1) don’t have minor children, and (2) have a signed separation agreement, six months. Even if you use fault based grounds for divorce (again, with the exception of adultery – if you prove it), you must separate for the full year before your divorce can be finalized, though you may file for divorce as soon as your grounds for divorce exist.
You are separated when at least one of you forms the intent to end the marriage and you stop cohabitating – so, living together as husband and wife. We measure cohabitation as both the way you behave inside and outside of the home, but you should be acting (and representing yourself as) a separated couple to family and friends. Virginia no longer requires a corroborating witness, but you will testify to your period of separation under oath (and penalty of perjury) whether you get divorced in court in front of a judge or whether it is done by affidavit. In most cases, you can live separate under the same roof.
What is legal separation?
I would use the two – separation and legal separation – interchangeably because, if you’re living separate and apart (whether you’re under the same roof or not, but you’ve formed the intent to end the marriage and you’ve stopped cohabitating), you meet the legal requirements for a separation in Virginia.
There is nothing you need to file, though, and no court process associated with separation. In some states, you have to specifically obtain a ‘legal separation,’ which is why you’ll see so many people say that legal separation isn’t a thing in Virginia. It isn’t, in the sense that you don’t need to be recognized by the court as legally separated or file some kind of pleading stating that you are legally separated, but it is, in the sense that you will have to be separated to finalize your divorce. I guess it all boils down to semantics, but I find these semantics can be really confusing if you’re not used to it.
Does Virginia recognize legal separation? Well, yeah, because you have to be separated for one year (or six months, in limited circumstances) before you can file for divorce. That separation period is legally required. It is a legal separation.
But there is no specific status for legal separation that you must obtain. No signed pleadings. No entered orders. Nothing like that.
So, what’s a separation agreement?
Another confusing tidbit – a misnomer, if you will. A separation agreement is not an agreement that acknowledges that you are separated. For most couples who enter into a separation agreement, they have already separated (and they acknowledge a specific date of separation in their separation agreements, which is important because we will need that to finalize divorce later). But the agreement is not about, or at least, not JUST about, establishing that they are separated.
A separation agreement is the legal contract we use to divide the assets, liabilities, and responsibilities from the marriage. You have essentially two options: you either get an agreement where you agree, together, about how you’ll resolve it all, or you go to court and let the judge decide. That’s it.
So, it’s not so much a separation agreement as it is a divorce agreement. I’m not sure why we don’t call it that, but, alas, I do not make up the verbiage. I have also heard separation agreements called property settlement agreements and settlement and stipulation agreements, or even marital and separation stipulation agreements. Separation agreement is what I’d use myself.
A marital agreement, though, is something different. Usually – kind of like a prenuptial agreement – a marital agreement is what you’d use during the marriage (and before separation) if you wanted to establish what might happen in the event of an eventual divorce, but when your goal is ultimately still to save your marriage. You are not separated (or separating), but rather trying to establish boundaries around what will be divided and how. Instead of doing it before marriage (a prenuptial agreement) or after separation (a separation agreement), you can also negotiate terms during your marriage (a marital agreement).
I know. Confusing. But I hope it makes a little more sense.
At any rate, you have to be separated before you can divorce and, unless you want to go to trial, you’ll need a separation agreement, too.
For more information or to request a copy of our divorce book for women, give us a call at 757-425-5200.