Filing for Legal Separation in Virginia

Posted on Jan 25, 2016 by Katie Carter

The first step towards divorce, for most couples, is a separation. Most people refer to it as a “legal” separation, though, in Virginia at least, there’s no actual, technical “legal” status. There are no forms to file, no protocol to follow; you are simply separated at the point when you decide to become separated.
In Virginia, to be separated, it doesn’t even require a meeting of the minds; one of you alone is enough to make the decision to separate. It’s a mindset thing, a decision. And it only requires one of you to make that decision.
Of course, along with that decision comes action. It’s not enough to form an intent in your mind, and then go on living your life the way you lived it before you made that decision. In Virginia, in order to be separated, you must first form the intent to separate and then, from that point, cease cohabitating with your husband.

What is cohabitation?

Cohabitation is pretty simple. It means, basically, “living together as husband and wife.” When you cohabitate, you live together with someone in a way that would give others the impression that you are married.
It’s probably pretty safe to assume that this is the way you’ve been living all along. You probably slept in the same bedroom, shared in the family responsibilities (like cooking and cleaning), wore a wedding ring, celebrated anniversaries, attended church or community events and parties together, and more. All those things that you did when you shared a life together, and planned to continue sharing a life together, meant that you were, in fact, cohabitating.
Now that you’ve decided to separate, you have to stop cohabitating. That means that you should be living the way you would if you lived in completely separate physical spaces. Imagine that he lived in an apartment and you stayed in the home. Would you be doing his laundry? Picking up his favorite treat as a special surprise from the grocery store? Giving and receiving gifts? Sleeping in the same bed? Kissing? Holding hands? Playing “happy couple” in public? Chances are pretty good that you wouldn’t be doing any of those things and it’s important that, once you separate, you stop cohabitating, too.
Why does it matter? Well, to get a divorce, you’ll have to prove to the judge that you’ve been separated. In Virginia, you have to be separated before you can get divorced. Not cohabitating is a (huge, huge, huuuuge) part of being separated. The judge can’t grant your divorce without you at least testifying that you’ve been separated (“without interruption and without cohabitation”, according to the way the statute is written) for a period of one year (or six months if you don’t have minor children AND you have a signed separation agreement). Without the period of separation, you can’t get divorced.
Needless to say, this whole cohabitation thing is really important. Broken down, it refers to both how you behave inside the house, and how you represent yourselves when you go out in public. It’s not enough to just stop cooking for him and cleaning up after him; you’ll have to let other people in on the secret, too, and start behaving as though you’re a separated (as opposed to happily married) couple.

We’re separating. Do we have to live in separate physical spaces, or can we live separately in the same house?

Most judges are okay with separation in the same home. If, for whatever reason, you’re trying to separate and live in the same house, you’re going to have to be a little extra strict on yourself. It’s easy to fall back into old patterns when you’re living in the house. Washing up the last couple of dishes, eating whatever leftovers happen to be left sitting in the fridge, and picking up those extra odds and ends that you know your husband needs.
Do I think it’s likely that having eaten some of his left overs (or him eating some of what you’ve prepared for the family) is going to defeat your argument that you’ve been separated? Probably not. Especially in an uncontested divorce, you simply have to testify that you separated and didn’t cohabitate. In most cases, the judge isn’t going to go into excruciating detail with you. He probably won’t ask whether you always did all of your own laundry and never accidentally washed a pair of his boxers. And, even if he did, would he care? Probably not.
Still, I do have to warn you that the judge’s guard might be up in your case, especially if your whole period of separation was shared under the same roof. It’s tricky to truly separate that way. The judge probably won’t care, but you should know that it’s a little risky.
Need more information? Want a list of things to keep in mind as you prepare to live separate in the same house? Request a free copy of our divorce book.  We’ll send you an e-copy of the book right away and, if you live in our immediate area, we’ll get a hard copy mailed out to you right away—so you can dog ear the pages and highlight the text to your heart’s content. But, when you get the e-copy, you’ll immediately be able to flip to the list of the things you need to know if you want to prove to the judge you’ve been living separate and apart under the same roof. (As of the date of this writing, that’s on page 11 in the book.)

Do I need an attorney to separate from my husband?

Nope. At this stage, there’s no need to hire an attorney. In fact, there’s nothing really “legal” that you have to do. You have to form the intent to separate, and then you have to stop cohabitating. What could an attorney do?
Now, if you have specific questions or need advice for how to start to move your divorce forward, you may want to talk to an attorney. Sometimes, unique issues in a case can cause you to start to worry, even before you’re even headed in the direction of a divorce and, if you find yourself in that type of situation, talking to an attorney may be something that would help calm your nerves and begin to figure out your next steps.

I’m not sure if I want to get divorced. What happens next? Can we get back together again?

Separation doesn’t always mean divorce. For a lot of couples, taking some time out for a separation is time to seek out a marriage counselor or to work on other things, with the end goal being to bring the marriage back together again. Sometimes, it’s just a time out.
There doesn’t have to be a next step. Take your time, and play it by ear. You can talk to an attorney, if you want, if it makes you feel better, or if you have some burning questions that you need to get answered. You can see a marriage counselor, whether independently or as a couple. There are a lot of things you can do during your period of separation to figure out whether your marriage is worth saving.
Nothing about a separation is permanent unless you want it to be.
For some couples, sitting and waiting and hoping that things will get better is a foreign concept. They decide to take proactive action to help save their marriage. For some, the answer is in drafting a marital agreement.

What’s a marital agreement, and how can it help save my marriage?

A marital agreement is a legal contract that, in many ways, is very similar to a separation agreement.
You probably already know that a separation agreement is the way most couples get divorced these days. It’s a legal contract that divides all the assets, liabilities, and responsibilities in the marriage between the parties so that they can move forward with an uncontested divorce. It handles everything, from the retirement accounts to the real estate and custody and visitation of the minor children, paving the way for the couple to move forward with an uncomplicated uncontested no fault divorce once the period of separation has run.

A marital agreement is similar. Instead of being a document drafted with the end of the marriage in mind, though, a marital agreement is one whose purpose is, first and foremost, to create a set of terms and conditions under which the marriage could potentially be saved. It’s an attempt to address and, ultimately, correct the issues in the marriage.
Usually, an attorney is hired to help draft the marital agreement; sometimes, both parties are represented by counsel. In marital agreements, though, a lot of extra attention is paid to devising a set of conditions that will help the parties work together better as husband and wife. Sometimes, in these types of agreements, we require marriage counseling, weekly date nights, or impose budgets to address financial concerns. There’s a lot of flexibility here to create conditions that make both parties feel more comfortable in the marriage and allow us to address the concerns of both parties.
On top of these types of conditions, we also decide how things would be divided in the event of a divorce. (Sometimes, this discussion alone is enough to encourage couples to give it another try!) That way, in the event that the other marriage-saving criteria fail, the parties have a ready-made separation agreement already established. He doesn’t go to marriage counseling or doesn’t hold up his end of the bargain in some other way? Wife is ready to move forward with the divorce.
A lot of times, these agreements are easier to negotiate than separation agreements because the parties are still interested in trying to make things work. They’re more conciliatory and cooperative with each other because all isn’t lost. In some cases, it’s exactly the right way to save the marriage. It may even be something that is worth considering in your case.

I’m sure I want a divorce. I’m ready to move forward. What should my next steps be?

Sometimes, separation is just a quick stop on the way to divorce. If that’s where you are, that’s fine, too. There’s nothing wrong with saying it’s over when it’s over.
If your marriage is over, it’s time to take the next step. First, you’re going to want to figure out what type of divorce you’re planning on pursuing. Are you going to use fault grounds, if you have them, or stick to no fault? Fault based grounds may make negotiating difficult, if not entirely impossible, because they require going to court and, in many cases, just letting the judge decide. It’s important that you start to think these things through now.
A great place to start, especially as you make these kinds of big picture decisions, is by attending one of our monthly divorce seminars. We’ve been offering them in Hampton Roads for nearly 30 years now, and, as the title suggests, they teach “What Every Virginia Woman Needs to Know About Divorce.” Each seminar is 1.5 hours long, is taught by one of our licensed and experienced Virginia divorce and custody attorneys, and also features a local licensed mental health professional. Both the attorney and the therapist are on hand to answer questions from the audience—whatever those questions are.
The cost to attend is $40 if you pre-register online or just $50 at the door. For more information, click here.
If you’re headed towards divorce, don’t worry. You have a lot of questions now, but going to the seminar is a great way to clear your head and begin to make decisions about your future.
Need to talk to someone right away? That’s fine, too. Give our office a call at (757) 425-5200 to schedule an appointment with one of our licensed and experienced Virginia divorce and custody attorneys. We’ll help get you started in the right direction.