Of all the issues we will discuss, this is among the toughest to answer. Absent provable abuse entitling you to a Protective Order issued by a Juvenile and Domestic Relations District Court, you can’t make him leave and most judges simply won’t kick him out. Adjust accordingly for the time being.
You may ask, why can’t I kick him out of the house? He is making life miserable for me and the kids!
Perhaps no issue is more vexing than when a family is headed for divorce and you want your husband out of the home. There are simply no easy answers to resolve this matter. The courts are very reluctant to forcefully remove anyone from his home unless there is very clear evidence of physical threat. The underlying reason for this goes back to the old English common law that your home is your castle and the king was unable to enter your home absent a writ from the court. Again, adjust accordingly, with the long term picture in mind. Keep in mind, your husband may be trying to get you to leave the marital home and you may need counsel as to whether you should leave and when and how you would leave. You do not want to leave without a jointly agreed upon strategy with your attorney.
Furthermore, you wonder, can we be separated while living in the same house?
To be “separated” means one of the parties has left the marriage and presumably the marital home with the intent not to return. Thus, the short answer to “Can we be separated while living in the same house?” is no. But there have been exceptions in the Virginia case law That leave open the door of possibility of an in-home separation. One must realize what the risk of such a separation entails before undertaking such an endeavor.
WARNING: Living separately within the same residence as your spouse can be very difficult toprove to a judge. You may discover that the judge will not accept “your separate under the same roof” status and tell you to come back after a year of living separately in your own residences. This could pose an added expense as well as a delay to your divorce process.
The reason for this warning is that it is clear that the courts do not favor “living in the same residence” separations, and most judges will not award a divorce relying on an in-home separation; however, there are reported cases where judges have permitted separation under the same roof, provided that many, if not all, of the conditions indicated in the checklist below are followed.
Presentation counts: confusing cohabitation,collusion and public policy
In Virginia, “cohabitation” is living together as if married. This does not mean that one has to be having sex with one’s partner in order to be deemed a family in the eyes of the law. Accordingly, because a married couple has not had intimacy for a while does not mean that the two aren’t cohabiting. Thus, when you live together in a home, you are holding yourself out to the public essentially as a family, which is a contradiction of the element of “intent to separate.” Oftentimes, couples do not want their friends to know that they are getting separated or divorced, and the Commonwealth of Virginia essentially is saying that if you intend to be separated or divorced, then you
must present yourselves as being separated in order to obtain a divorce. You cannot appear to be married while claiming to be separated.
Furthermore, when you live together with your spouse, but claim you are separated, there is a great chance for “collusion” in the eyes of the court. Remember, it would be collusion if a husband and wife fraudulently claimed that they were separated, when in fact they were not. Finally, the public policy of the Commonwealth of Virginia is to support the family and marriage. Thus, the Commonwealth, through the legislature and the courts, wants to make it more, rather than less difficult to get divorced. Accordingly, the intent to separate is not readily manifested in an in-home separation.
GUIDELINES FOR SEPARATION UNDER THE SAME ROOF
• Use separate bedrooms.
• Do not engage in romantic or sexual intimacy.
• Each spouse should shop for his or her own food,
prepare his or her own meals; should not shop for
the other, including clothing and other necessities.
• Do not use the other spouse’s food or other purchases.
• Do not eat meals together (exceptions: holidays
or children’s birthdays).
• Each spouse should be responsible for caring for
his or her own space within the home.
• Each spouse should do his or her own laundry.
• Use a separate and secure computer. Still, be careful
what you use the computer for.
• Use a separate and secure telephone/cell phone
for personal and business calls.
• Establish separate checking accounts.
• Cease socializing together, e.g., do not attend parties,
movies, theater, etc. together.
• Do not attend church together.
• When there are minor children, interact as parents
only where strictly necessary from the chil-
dren’s perspective and their well-being, e.g., it
would be acceptable for the parents to go together
to a meeting with a school official relative to problems
confronting a particular child, but less appropriate
for the parents to ride together and sit
together at a child’s school play or soccer game.
• Cease gift giving between spouses for such occasions
as birthdays, Christmas, anniversary, Valentine’s
• Make known to close associates, relatives, etc.
that you are not living as man and wife, but are
separated within the residence.
• Have an objective third party come to the home
from time to time to personally observe the two
spouses’ separate and distinct living quarters (bedrooms,
• Utilize separate entrances to the residence if feasible.
• Be prepared to explain reasons for living separately
under the same roof, e.g., financial considerations;
unavailability of separate residence; easing children’s
transition to parental separation, etc.
• Do not role play as the happy couple in front of
neighbors and social acquaintances. You cannot
“hold yourselves out” as husband and wife to the