One Year Separation and Divorce

Posted on Mar 24, 2021 by Katie Carter

If you’ve been following us for awhile, you’ve probably started to figure out a few things about the Virginia divorce process. Still, it can be really confusing, and, if you’ve got lingering questions, you’re not alone.

I’ve tried to do a good job of spelling out even the most basic of concepts, because the law isn’t easy and seeing how even simple concepts can apply to a complicated situation is always a challenge. (That’s why, in law school, every law student learns that the answer to every question is, “it depends.”)

Today, I’m going to write a little more about legal separation. On Monday, I wrote about how to get a Virginia divorce after just 6 months of separation. That’s not going to be something that everyone is eligible for; only people who (1) don’t have any minor children, and (2) have signed separation agreements are eligible to get a divorce after just six months.

So, if you do have minor children, or if you can’t reach an agreement, you’ll have to be separated for a full year before you can finalize your divorce. Actually, you’ll have to be separated for at least 366 days, because until the 365 days have elapsed, you haven’t been separated for a year. So, really, you’ll have to be separated for a full year – and that’s assuming that you’re ready to have your agreement submitted or set your trial date on that 366th day. And, I’ll be honest: I don’t think I’ve ever seen a divorce granted on the 366th day.

So, how long will it take to get a divorce using a one year separation?

It’s impossible to say. It depends on how long it takes you to reach an agreement or, in the alternative, to fail to reach an agreement and go ahead and set a trial date.

If you reach an agreement, you have a little more flexibility. You can submit your final divorce packet to the court, if you’re going the divorce by affidavit route, as soon as you have all the pieces in place. It’ll usually take the court a few weeks to review your packet and grant your divorce. Sometimes more, sometimes less – but it depends on how backed up the court is.

If you don’t reach an agreement and you have to set a trial, the timeline may be more out of your hands. It’s hard to set a trial. Courts are backed up, and some – like Suffolk, for example – don’t have dates (especially not the hours worth of court time you’d need to try an entire divorce case) for a pretty long time. Sometimes, it’s a year or more out. It’s not uncommon for courts, even courts with six or more judges on the bench, to have at least 6 months before you can set a trial date. It’s not easy or quick.

And not even that, you may find that there are some procedural hoops you have to jump through – like that you have to have a judicial settlement conference before you can set a trial date. Courts have local rules that apply within their courtrooms, and you’ll have to follow them – which can make your divorce take longer (and cost more money, especially if you don’t settle).

All that to say, I don’t know. It can take a long time. Or not that long, considering that you already have to be separated for a year before you can even entertain a final divorce decree being entered. And, really, a year is a fairly long time to just wait in limbo.
Though I sympathize, I also don’t make the rules. All I do is help you follow them, so that you can resolve your case as quickly, inexpensively, and uneventfully as possible.

What does it mean to be legally separated?

When you legally separate, in Virginia, you (1) form the intent to end the marriage, and (2) stop cohabitating.

Only one of you must form the intent to end the marriage, so you don’t have to be in agreement. But that means that you’re not giving each other any kind of false hope, continuing to attend marriage counseling, or behaving like the happy couple in public.

Cohabitation is the fancy legal word we use to describe living together as husband and wife. So, when we say you stop cohabitating, it means you stop behaving in the home – and outside of the home – the way you did when you were married. Your friends and family should know you’re separated. You shouldn’t attend church together, or go to parties together, even if just to save face.

Anyway, you’ll need a corroborating witness at the end of that year, so someone has to be able to testify both that you’ve satisfied the statutory requirement and that the date of separation you alleged is actually accurate. So, truthfulness behooves you.

It’s not so much about whether you live in separate physical spaces; lots of people live separate and apart in the same home. It’s more about how you’re living. I think the litmus test is this: Would I be doing ____ if I lived in my own apartment? If the answer is no, then don’t do it.

What is a separation agreement?

A separation agreement is the legal contract that divides the assets and liabilities between the two of you. To get a divorce, you HAVE to separate all the marital property. The judge just can’t grant a divorce without dividing all the things between you. So, you have a choice.

Either you can do it, or the judge can do it.

Do you think you’ll like it if the judge does it? Because I – I’m going to be really honest here – don’t think you will.

A separation agreement is the other way forward. It divides all the things between you, according to whatever you agreed on.

What if we don’t reach an agreement?

It’s always a possibility, though, that you can’t negotiate an agreement, for whatever reason. Big things – like, specifically, custody and visitation, and spousal support – can sometimes make negotiation impossible.

Hey, that’s why the court is there. If you can’t resolve it, the judge can. It doesn’t mean it’ll be easy, or quick, but it’s an option and it’s there.

You’ll have to choose – or have one chosen for you – one or the other. There’s no way to get divorced without reaching an agreement or, alternatively, going to court and resolving things in front of the judge.

Either way, if you have minor children, you’ll have to wait a year to finalize. If you can’t reach an agreement, even if you don’t have minor children, you’ll also have to wait a year to finalize.

And, like I said, a year isn’t 365 days and then you’re done. Depending on how long it takes you to negotiate your agreement or, alternatively, to get your court date set, it can take much longer. Some divorces drag out for years. I don’t mean to depress you, but just to give you a realistic set of expectations. Which is to say, probably, no expectations, because divorces can be wildly, dramatically, unpredictably different from each other, depending on the facts involved.

Really, to get a better idea, it’s a good idea to talk to an attorney one on one . For more information, or to schedule a consultation, give our office a call at 757-425-5200.