Question: My marriage has been over for years and I’m ready to end it. The problem is, my kids – now teenagers – are refusing to come with me. They want to be near their school and their friends. What happens if they don’t come? I need to start this separation so I can move on with my life!
This is definitely a good question and one I’m happy to answer. In general, I would not advise that you ever move out and leave kids behind, especially not if you want to retain custody of them. This is doubly true if you’re fleeing a relationship that was abusive or if your partner has a history of abuse towards the kids.
You probably already know that. And, because, in this situation, you don’t lead with that – I’m going to make the assumption that he’s not abusive, or you’d have said you didn’t feel safe leaving them. (Heck, in that instance, I think it’s pretty likely that – friends or no friends – the kids would want to leave, too.)
It’s a totally different situation if there’s abuse, but reading between the lines here, I think I can safely dismiss that possibility.
A couple of points I do want to make, though:
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You don’t have to physically leave the home in order to legally separate from your husband.
Though physically separating is good, many couples can’t afford to maintain two separate residences during separation and until divorce. For most, there is a period of time where the parties live separate under the same roof.
If you decide to do this, you should make sure you’re living the way you would if you did actually live in separate physical spaces. You should not cook for or clean up after each other. You should not grocery shop or do laundry for each other. Both within the home and outside of it, you should behave as though you are a separated couple.
You can do this for the entire period of your separation – so, in Virginia, either six months if (1) you don’t have any minor children, and (2) you have a signed separation agreement, or one full year. Since you do have children, you’ll have to be separated for one year before you can finalize your divorce.
So, if you’re not in physical danger and the kids don’t want to leave, you can still separate from your husband and, at least for the time being, stay in the same physical space together while you work through the details.
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You are separated when you (1) form the intent to end the marriage, and (2) stop cohabitating.
Legal separation in Virginia is a bit loosey goosey. You are separated when these two things happen at the same point in time: (1) you form the intent to end the marriage, and (2) you stop cohabitating.
You have formed the intent to end the marriage, I think, just based off of the questions you’re asking. It only takes one of you to form that intent.
Now, you have to stop cohabitating – and we talked about that already when we talked about living separate under the same roof. Cohabitation is when two people live together like a married couple. When you separate, and start living like legal strangers, you stop cohabitating. Usually, this means that you are no longer sleeping in the same bed, cooking or cleaning for each other, or even spending time together outside of the home. You’re not wearing wedding rings, attending events together (except, maybe, parent/teacher conferences or other things for the benefit of the kids), or celebrating anniversaries and exchanging gifts.
There’s no going to church together to show a happy face in public; you should be representing yourself to family and friends as a separated couple. It used to be that you had to have a corroborating witness to show that you have been separated for the year period, but that’s no longer – thankfully – required. You will still have to testify to this under oath, though, so take it seriously.
While you can ‘back date’ separation in the sense that you can, say, file for divorce in April when you separated the March before, you cannot lie and say that you separated a year ago when you only just separated yesterday. It has to be factually true.
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It’s a bad idea to leave without the kids, if custody is an issue.
You don’t want to leave without the kids if you’re going to fight to the death over custody, but … will you? Custody and visitation of teenagers is often a very different situation than custody and visitation with younger children. Though teens still have to go if parenting time is court ordered or agreed to by the parties, many parents relax at this point – especially if the child(ren) are driving. They’re also often spending more of their recreational time with friends or in activities, so it’s less a question of parenting time and more a question of communication and awareness. (No one’s quicker to weaponize coparents who don’t communicate well than a savvy teenager!)
It doesn’t sound like custody is a huge issue, or you wouldn’t be considering leaving the child(ren) behind. To me, that says that things are either relatively amicable or, even if you wouldn’t quite go that far, that you don’t dispute dad’s presence in the kids’ lives. Maybe you’d both agree to share physical custody.
That’s not a dig. I know you love your kids and I’m not suggesting for a second that you don’t. It’s just that custody doesn’t have to always be a knock down, drag out battle. If anything, it’s a good sign for your case.
It may be that, in this case, it’s fine to go – especially if custody isn’t an issue. I’d be hesitant, if it were me, to leave my kids behind, just because teenagers can be so difficult. You know your family best, though, but you should be making decision in full knowledge of how the law works. If you wouldn’t leave, for example, because you find out that separation under the same roof happens all the time, then that’s something you should know.
For more information about separation or to schedule a consultation, give our office a call at 757-425-5200.