Separation isn’t always the road to divorce. For some couples, probably for more couples than I even realize (because, let’s be honest, I have an unbalanced sampling), separation ultimately leads not to divorce but to reconciliation.
That’s as it should be. I believe that women who want a divorce should be able to get one, but I also believe in marriage. And, if your marriage can be saved, then you should feel that you’ve done everything you could to save it. Whether you’re successful or not, at least you’ll know you’ve done all you could.
And, in the best-case scenario, you’ll reconcile.
To be fair, I don’t often deal in best-case scenarios. So, let’s look at what can happen in both the best and the worst of the (for many people) best-case scenario: reconciling and not divorcing.
We separated. How do I end the separation? Do we need to remarry?
Separated is not divorced. You are married – completely, fully, legally married – until a final divorce decree is entered. If you divorce and then decide to get back together, you will need to remarry. (You might be surprised how often this happens.)
If you are not divorced, though, you do not need to remarry. Separated is not divorced. So, how do you end your separation?
In Virginia, you are legally separated when (1) one of you forms the intent to end the marriage, and (2) you stop cohabitating. Cohabitation is explained in more detail in this post, but basically it’s a fancy legal way of describing living together as husband and wife.
To end your separation, you no longer have the intend to end the marriage and you resume cohabitation. That’s it. There’s not necessarily any forms to fill out or any work to do. Legal separation in Virginia isn’t that structured; there were no forms you needed to sign or fill out or file with the court then, either. So, it’s over if you say it’s over.
Unless…
What if we already drafted a separation agreement?
There are essentially two ways to end a marriage: (1) you negotiate a signed separation agreement, or (2) you go to court and let the judge decide how your assets, liabilities, and responsibilities will be divided.
Many people separate for a period of time – sometimes even years – before they get a separation agreement in place. Oftentimes that’s just because a separation agreement is a sort of inherently tricky thing to negotiate and it takes a little while. Other times, it’s because the parties are doing what they can to save the marriage first. (Though I’d argue that, for legal purposes, that would mean that they hadn’t formed the intent to end the marriage and it’s not really, strictly speaking, a legal separation.) Lots of people say that they are separated, for example, while still attending marriage counseling.
Remember, though: the question is the intent to end the marriage, and it only takes one of you to form that intent. You don’t necessarily know his true intent, and, likewise, he may not be aware of yours. Maybe you’re just going to marriage counseling to prepare him for the separation; maybe you never had any intention of saving the marriage. Could you argue that, in this case, it’s a legal separation? Maybe. But, in any case, that’s not your issue today.
If you already have a separation agreement in place, that means that you’ve gone pretty far down the road towards divorce. But, again, you are NOT actually divorced unless and until the final decree of divorce is entered and, at any point up and until that time, you can change your mind.
As far as the separation agreement is concerned, though, it probably has a specific provision in it regarding reconciliation and what happens. What I’ve seen most often is that there’s a provision that says that the agreement survives reconciliation; basically, in the event that the parties separate again later, that the separation agreement is revived. The agreement survives.
At this point, it’s essentially like a marital agreement or a prenup. Both of you know what will happen, and what specific terms will apply, in the event that you do separate and divorce later. That can be a really helpful sort of insurance policy for both of you.
Can we get rid of the separation agreement?
Yes – you can revoke it. Usually, there’s a provision in your separation agreement that says that you’ll need a document to formally revoke the agreement. If there are any other terms involved in that revocation, your agreement will specify.
You might want to do this, especially if you didn’t like the terms of that agreement anyway, or they aren’t sufficiently favorable to you.
Keep in mind, though, that if you reconcile and then separate again later that you’ll have to draft the separation agreement all over again – either that, or go to court and litigate – in order to finalize your divorce at that time.
What’s best? Well, that’s up to you. Maybe you feel like, even though the terms are favorable, you really can’t re-enter your marriage with it hanging over your head. A lot of people feel this way about prenuptial agreements; it’s just anti-romantic and, anyway, you aren’t going into your relationship banking on it failing.
Other people like the reassurance of having the agreement behind them, backing them up, in the event things go south again. Or maybe they just feel like they’ve invested in creating that particular solution and they don’t want to revoke it only to have to start over again if they separate. (What’s worse than paying for a separation agreement once? Doing it TWICE!)
It’s up to you. I’m not here to make a judgment, only to make sure that you understand what your rights and entitlements – and, yes, options – are. Whether you divorce or reconcile, and whether you stay reconciled or eventually separate again, it’s totally up to you!
For more information, to request a copy of our divorce book for Virginia women (for you or someone else), or to register to attend an upcoming divorce seminar, give our office a call at 757-425-5200.