Filing for Virginia Legal Separation

Posted on Oct 30, 2017 by Katie Carter

Divorce is one of those areas of law that is very state-specific.  Unlike certain areas of law that are federally controlled, each state is largely responsible for the divorce laws that govern in their courts.  The states are, as they say, the social laboratories.

So, it’s kind of hard to know, from state to state, how the laws differ.  If you talk to an attorney who is licensed in a different state, you’ll probably find that there are LOTS of things that are different from another state.  There may be similar aspects, but there are lots of different ones, too.  In fact, whenever someone asks me about divorce who lives in a different state, I tell them the truth – that I really can’t even give advice on divorce that would carryover to another state.  Even one like North Carolina, where you’d think we’d be pretty close – in many cases, we aren’t!

All that to say that, though it may be one way in one state, that doesn’t necessarily mean it’s the case in another state.  When it comes to separation, there can be a lot of variation in how it works under the law in different places.  And that’s tricky, because it’s the first step towards a divorce.   People usually have a lot of questions about separation.  When am I separated?  How do I file for a legal separation?  Can I live separate under the same roof?  Do I have to tell him we’re separated?  When do I tell the kids we’re separated?  And so on and so forth, ad nauseum.

I totally get it.  It’s confusing.  And it’s important to get it right.  You don’t want to think that you’re separated, only to find out later that you weren’t at all and have to start all over again!

Filing for Legal Separation

In Virginia, there’s no such thing as filing for legal separation.  There’s no official paperwork, and there’s no court appearance required in order to separate from your husband.  So that’s good!  It’s easy, and it won’t cost you any money.  You definitely don’t need an attorney at this stage in the game, either.

When are you separated in Virginia if you aren’t filing for legal separation?

In Virginia, you are legally separated when (1) you form the intention to end the marriage, and (2) you stop cohabitating as husband and wife. Those two things happen pretty simultaneously in most cases.  Once you decide to end the marriage (a decision you can make on your own, without any input from him, and without formally telling him), you’ll have to stop cohabitating.

What is cohabitation?

Cohabitation is a fancy legal word we use to describe when two people live together as husband and wife (or wife and wife, or husband and husband).   When you live together as husband and wife (or, again, wife and wife or husband and husband), you do certain things.  You grocery shop for each other.  You cook for and clean up after each other.  You do each other’s laundry.  You share a computer.  You sleep in the same bed. You probably also wear wedding rings or other jewelry to celebrate your commitment. You do things together outside of the home, too.  You hold yourselves out as husband and wife.  You celebrate anniversary dinners at restaurants.  You ride in the car to places together.  You sit together at your son’s soccer games.  You arrive together to your daughter’s parent/teacher conference.  You attend church together. It’s about holding yourself out as husband and wife.  It’s about behaving in a way that would make people recognize you as a couple.

To be separated, you have to stop doing those things – both inside of and outside of the home.  You should be behaving as though you’re separated, which means that you should act the way you would if you and your husband were strangers living in separate physical spaces.

You should also stop playing the happy couple in public.  For most people, that’s harder.  For those of us raised in the south, it’s hard to air your dirty laundry in public!  None of us want people to know what’s going on at home, especially when it’s not good stuff!  In the age of social media, we all want to make our lives appear as good as our neighbor’s, too—so there’s also that point working against us. You’ll want to represent yourself as a separated couple, even to friends, family, neighbors, and acquaintances, no matter how hard it may be.  It’s pretty difficult.

Can we live separate under the same roof?

Most of the time, yes.  Technically, it’s a little bit risky, because, at the end of your period of separation (which, in Virginia, is one year, unless you have a signed separation agreement and no children under the age of 18, in which case you can get by with just 6 months of separation), you will have to testify (and have a corroborating witness testify) that you were truly separated for that period of time.  It can be easy to fall into familiar patterns if you’re still living together, and those patterns can defeat your claim that you were separated.

Or, worse, if you live separate under the same roof, you may subject yourself and your children to a difficult domestic situation. Most of the time, I find there’s really no difficulty with cases where the parties truly lived separate under the same roof.  Technically, though, there could be, and in many cases judges require these parties to have a hearing for their uncontested divorce, rather than doing a divorce by affidavit.

That’s really irrelevant; a hearing is an insignificant detail in an uncontested divorce case.  Still, it’s something you should be aware of.  I don’t think it should even truly factor into your decision making, but it’s something that you should be aware of from the beginning and shouldn’t surprise you later on down the road. Separations aren’t really all that tricky, though people often make it seem more complicated than it is.  In Virginia, a separation happens when you form that intent, and then stop cohabitating.

It’s really that simple!  You don’t have to go down to the court, file any paperwork, or do anything formal like that.  You don’t even have to hire an attorney; it’s merely the intention formed in your mind coupled with the change in your behavior towards your husband.  He doesn’t have to make the same decision; you can stop cohabitating all on your own. For more information, or to schedule an appointment to speak with one of our attorneys, give our office a call at (757) 425-5200.