Separated and Divorcing in Virginia

Posted on Sep 12, 2016 by Katie Carter

If you’re wondering whether it’s possible to save your marriage or it’s really just time to end it, you’ve probably already given some thought to a legal separation. Being separated, after all, doesn’t officially mean things are ending, but it does mean that both you and your husband can take some time to really think about the relationship, and decide whether it’s worth continuing. In some cases, it takes a separation for your partner to truly appreciate that you’re serious.
Most people who separate don’t do so intending to get divorced. Instead, they’re hoping that separation will be a helpful way to get their marriage back on track. Failing that, though, they recognize that divorce is probably a logical next step.
Still, there are a lot of questions that surround separation. At least part of the problem is that things are a little different in each state, so it’s easy to get confused and to get misinformation from well-meaning friends and relatives who either live or were already divorced or knew someone who got divorced in another state.
There are a lot of questions surrounding separation in Virginia, and what makes it a “legal” separation. Today, we’ll discuss separation, including how you get separated, how long you need to be separated, why you need to be separated, and, finally, whether a separation agreement has anything to do with being legally separated.

So, how do I get separated?

In Virginia, you don’t have to file for a legal separation. In fact, it’s a lot easier than that. To be separated, one of you (only one!) has to form the decision in your mind that the marriage is over. Then, combined with that decision, you have to stop cohabitating. Once you’ve done both of those things, you’re separated.

What is cohabitation?

Cohabitation is a fancy legal word that we use to describe living together as husband and wife. Cohabitation refers to the way you behave (1) in the privacy of your own home, and (2) when you’re out in public. People who are cohabitating often do things like wear wedding rings, celebrate anniversaries, cook for and clean up after each other, and ride and sit together at church.
People who aren’t cohabitating, on the other hand, should keep in mind that both inwardly and outwardly they’re trying NOT to behave as husband and wife. Typically, though not always, people who have separated live in completely different physical spaces. They stop wearing wedding rings, sleep in different beds, and let friends and family members know that they’re separated.
The law says that, in order to get a divorce, you have to live separately without interruption and without cohabitation. Of course, though, if you’re just trying to separate to work on your marriage, you don’t really have to worry about what the law requires. Once you’re truly headed towards divorce, though, you have to follow the court’s rules—meaning that you have to live “separate and apart without cohabitation and without interruption.”
It’s usually possible (though, keep in mind, it’s up to the judge to decide) to live separately in the same house, so long as you’re behaving the same way you would be if you were living in entirely separate physical spaces. The statute doesn’t require that you live in separate spaces, so much judges will allow it (though they may apply a stricter level of scrutiny to be sure that you were really separated).

How long do I need to be separated?

In Virginia, in order to get divorced, you need to be separated for one year, or six months if (1) you don’t have minor children, and (2) you have a signed agreement in place.

Why do I have to be separated?

To get divorced, you need to have grounds. That doesn’t mean that you have to have fault based grounds (like adultery, sodomy, buggery, felony conviction, cruelty, apprehension of bodily hurt, desertion or abandonment), though; these days, you can use no fault grounds if (1) you don’t have fault based grounds, or (2) you do have fault based grounds, but you’d prefer to pursue a no fault divorce.
To have grounds for a no fault divorce, you have to be separated for a year (or six months, if you’ve met the two criteria we outlined earlier). Until you’ve been separated for the statutory period, you don’t have grounds, so you can’t file for divorce at all. You have to be separated for the full year, or else you can’t get divorced—and you have to play by the court’s rules during that time, too.

If I sign a separation agreement, does it mean I’m separated?

No. Lots of women ask me this question and, the more I think about it, the more I definitely can’t blame them. You can be separated without signing a separation agreement. The name is a little bit confusing, but a separation agreement (or, as it is sometimes also called, a marital and separation agreement, or a separation and stipulation agreement, or a property settlement agreement) has nothing to do with whether you’re actually living separately at the time that it’s entered into. Theoretically you SHOULD be separated at this point (otherwise it would be called a marital agreement, even though for all intents and purposes it would be a very similar document), but the fact that you have or don’t have a separation agreement in place doesn’t reflect on the status of your separation.
You can be separated with or without a separation agreement. If you’re not separated and you have an agreement like that, in all likelihood it’s a marital agreement. You’re separated, like we said before, at the moment that you (1) decide in your mind that the marriage is ended (or, alternatively, your husband makes the decision), and (2) you stop cohabitating (basically, living together as husband and wife). Whether you’re separated has nothing to do with whether there is a separation agreement in place.

How should we behave while we’re separated?

Whether you and your hubby are still planning on working on things, or whether you’re taking a short stop on the road towards divorce, you keep to keep a few things in mind. When you’re separated, you’re still married. You’re married, no matter how long you’ve been separated or how little you’ve had to do with each other, until your final divorce decree is entered by a judge in a Virginia circuit court. Keep in mind that, just because you’re separated, doesn’t mean you have free rein to behave however you want. You’re married until you’re divorced, and, in the time that you’re separated, it is still considered adultery if you (or your husband) have sex (oral, anal, or vaginal) outside of your marriage. In most cases, that’s not an issue, but I’m always surprised at how few people really realize the distinction.

Does adultery even make a difference?

Really, it all depends. There is definitely a distinction between pre separation adultery and post separation adultery—mostly because, in the judge’s view, pre separation adultery probably led to the breakdown of the marriage, and post separation adultery happened after the marriage was already irretrievably broken.
Adultery, though, is a crime in Virginia—it’s a misdemeanor, and it’s rarely punished, but, you should be aware that it’s still a crime.
Even if you’re not particularly concerned about the possible criminal consequences, there are at least two other reasons that adultery matters. For one thing, the judge can use one spouse’s act of adultery to justify a disproportionate award of the assets. Translation: if you’ve committed adultery, it is possible that your husband could get more of your stuff in the divorce. It doesn’t usually happen (in fact, it rarely happens), but it’s really not worth the risk.
Additionally, if you’ve committed adultery, you will be barred from asking for spousal support in your divorce.
Feel free to live your life as you choose, but, ideally, you should do so in full awareness of the possible consequences of your actions. In the case of adultery, the consequences are as much as threefold: (1) you face criminal prosecution, (2) your husband could receive a greater share of the marital assets, and (3) you won’t be able to ask for spousal support.

What if we decide to reconcile?

Good for you! Lots of people separate without the intention to get divorced, hoping instead that a little forced separation will be beneficial for both partners. And, lots of times, it is. Whether it’s because you’ve realized that you can’t live without each other or just that the grass isn’t always greener on the other side, deciding to stay together is a big decision. You are right to take your time to gather information and prepare yourself for the road ahead. Because, regardless of whether you save your marriage or end it, there’s always going to be a lot of work involved.
Obviously, if you reconcile, the separation period ends. If things don’t work out later on, you’ll have to separate all over again, beginning with day 1, until you reach the end of the statutory period (one year or six months if you don’t have minor kids and have a signed agreement). For lots of people, they just decide to move back in together, resume cohabitation, and move on with their lives.
Other people decide to get a marital agreement in place to protect themselves after the reconciliation, just in case things don’t work out as perfectly as they hoped. Marital agreements, like separation agreements, divide all the marital assets, except that, with a marital agreement, the hope is that you’ll be able to stay married. A lot of times, marital agreements also include specific provisions, like couples counseling or date nights, as preconditions to the continuation of the marriage.
Proponents of marital agreements say that knowing what will happen in the event of divorce allows them to focus instead on their relationship. It doesn’t leave so much of the fear of the unknown that plagued them before, and it incentivizes them to work together to save the marriage.
Whether you choose to reunite with or without a marital agreement, you’re asking the right questions. It will certainly help to make choices if you have all the possible available information.
Many marriages go through tough times. Hopefully your separation is enough to make you realize how much you truly appreciate each other.

What if we don’t decide to reconcile?

Not everyone who separates is able to save their marriage. In fact, probably most of the people who separate do eventually divorce. You’re not alone, and you shouldn’t beat yourself up over it. It happens, and it’s okay.
If you decide not to reconcile, you’re already separated, so the process has already begun. If you’re trying to negotiate a separation agreement to move forward with a no fault divorce (which is probably the best idea), now is a good time to start negotiating. You can negotiate a separation agreement through a number of different methods, including mediation, collaboration, with an attorney, or on your own, without an attorney or mediator.
If you have fault based grounds, on the other hand, you may be able to file, but it’s a good idea to talk to an attorney first, so you can get an idea of whether the juice is worth the squeeze, so to speak. Stay calm, and keep your goal in mind. What’s your goal? Well, it should be something like this: Get divorced as quickly, efficiently, and cheaply as possible, to preserve as much of my assets as possible to re-build my life after divorce and, if applicable, to protect both my relationship and my husband’s relationship with our children.
You may be ready to talk an attorney about your options, and to make sure that you have all the information you need to make decisions during your separation. We’d love to have you come in for a consultation, or even attend our monthly divorce seminar, Second Saturday: What Every Virginia Woman Needs to Know About Divorce. For more information about setting up a consultation, give our office a call at (757) 425-5200, and to check out our divorce seminar, visit