Are we separated if he sleeps on the couch?

Posted on Dec 2, 2016 by Katie Carter

Separation in Virginia, like most everywhere else, is often the first step towards divorce. But a lot of women are often confused about what it means to separate or be legally separated in Virginia. What’s required? How do you have to change your behavior? Is there any paperwork that goes along with a legal separation? Does what you’re doing already count, or do you have to do something more?  The first time I talk to a lot of women, they’ve already made some changes.  One of the first is often that their husband starts sleeping on the couch.  So, of course, their first question is — are we separated if he sleeps on the couch?
There’s a lot of confusion when it comes to separation, and, considering the way the law works, I think that’s pretty understandable.

What do I have to do to get a legal separation in Virginia?

As far as a legal separation is concerned, there’s no actual paperwork that you have to file. Though I’ve only ever been licensed in the Commonwealth of Virginia and can’t really give information on the legal processes in other states, it is my understanding that other states have requirements like this—that you have to actually make a physical appearance at the courthouse and file specific paperwork related to separation.
Not so in Virginia. In Virginia, to be separated, there are two things that you have to do: (1) you have to form the intent to end the marriage, and (2) you have to stop cohabitating. Without both of those things together, you aren’t really separated.

Form the intent to end the marriage

You don’t have to BOTH decide to end the marriage; it’s enough if just one of you says you’re through. This requirement is sort of on the loosey goosey side, because there’s nothing you have to do, or any kind of formal announcement you have to make, in order to intend to end the marriage. It’s a mental state, and that’s it. It’s a decision you make inside your brain, and not even necessarily one that you have to inform your partner of—that is, until you get to the requirement that you stop cohabitating.

End cohabitation

It’s really the combination of the first factor—intending to end the marriage—along with ceasing cohabitation that means that you’re separated under Virginia law.
At the point that you stop cohabitating, you stop living together as husband and wife. That includes both the way that you behave inside the home, towards each other when no one is looking, and the way that you behave outside the home, in front of family, friends, and acquaintances.
Inside the home, you should be taking care of your own cooking, cleaning, and grocery shopping. You should be sleeping in separate rooms and, to the fullest extent possible, behaving the way you would if you lived in completely separate physical spaces (as in, he lives in his house, and you live in yours—and they aren’t the same).
Outside the home, you shouldn’t be playing the happy couple. It’s easy to do; everyone’s mama raised them not to air their dirty laundry in public. Still, as far as separation is concerned, you’re going to have to—at least a little bit. You’ll need to stop wearing wedding rings, stop attending church together, and stop doing whatever you were doing that would make other people think that you’re a happily married couple. In fact, it’s really not inappropriate to announce your separated status.
After all, at the end of a year, when you move forward with an uncontested divorce, you’ll need a corroborating witness to testify to the court that you were separated for the full year. It’s likely that the judge will ask your witness, “Were they separated during the period?” and also, “If they had gotten back together, would you have known?” So, at least one of your friends or family members is going to have to have pretty intimate knowledge of your living situation.
Now that I’ve discussed generally what it takes to be separated in Virginia, I’m going to answer some of the more unusual questions I’ve gotten about separation lately. I love it when I am asked an unusual question, or one that I haven’t been asked before, because it tells me a lot about what women are thinking and areas that I need to be a little more specific. Though I viewed these questions as a little more on the unusual side, you may be wondering, too! Read on.

Are we separated if he sleeps on the couch?

Sleeping on the couch is a good indicator that a separation has taken place or is about to occur, but sleeping on the couch alone probably isn’t enough to prove that you’re separated.
Separation, remember, is a total concept; it’s not just related to where you sleep or whether or not you’re still having sex. Though sex is an important part, it’s not the only part, and it’s not enough on it’s own to prove separation. (I mean, think about it: how many perfectly happy married couples sleep in separate rooms because one snores or because they have opposite work schedules? That alone doesn’t prove the intent to be separated and end the marriage. It could just prove that both really like sleep.)
Remember, you’ll have to stop cohabitation entirely, so you’ll have to think about the way you’re behaving inside the home and outside the home. Sleeping on the couch, if you don’t have a separate bedroom, is definitely one way to begin a separation—but you’re going to have to combine it for a total overall approach. You’ll have to make sure that you stop cooking and cleaning up after each other, grocery shopping for each other, doing each other’s laundry, and so on.
You’ll also have to consider the way you’re behaving in public. Are you still going out to dinner together? Vacationing together? Attending weddings and family events together? All of those things are a pretty sure sign that you’re not, in fact, separated—yet. That doesn’t mean that what you’re doing can’t turn into a separation, it just means that the one year period hasn’t started running. You’ll have to combine the sleeping on the couch with the other factors that make up a separation.

Would a judge find if we’re NOT separated if we aren’t following your list perfectly?

Like, what if we use the same spices in the cabinet?  (Seriously, I’ve had this question before!)
I know I said you need to cook and clean on your own, and that’s true—you really do. Of course, that doesn’t mean that you can’t practice separation with a dose of realism.
I think it’s pretty unlikely that a judge would find that you’re not separated based solely on the fact that you’ve used the communal paprika. In fact, remember how I said the judge might ask questions to your witness—like whether that person had reason to know that you’d been separated, and whether he or she would know if you had reconciled?

Well, even if you had shared the Old Bay, that probably wouldn’t come out in the testimony anyway. If you’re living in separate rooms and behaving as a separate couple, doing everything else it takes to move forward with divorce, who is even going to spare a thought for the contents of your spice cabinet?
It’s an interesting question, and one I haven’t had before. It’s also reasonable, because I emphasize so much doing things the way you would if you lived in completely separate spaces. If you lived truly separately, you WOULD have your own cumin, wouldn’t you? But, still, I think there’s virtually no chance that a judge would get down to this kind of nitty gritty detail in your uncontested divorce hearing and, even if he did and it happened to come out, I think it’s unlikely that it would defeat everything else you did with the intention of being separated. (After all, you’re breathing the same air, too! How picky do we want to get?) So I don’t think it’s necessary to purchase separate spices or condiments in preparation for your upcoming separation, but I do think you want to make every effort to separate as fully as possible.

What if I make dinner for the kids? Does that mean he can’t have any? I just worry that I’m setting a bad example and looking ugly in front of the kids.

This is a totally reasonable objection. Again, I think it’s important that you stay within the intention of the rules—that you should live as separately as humanly possible. That being said, though, I think your first goal, beyond anything else, should be to be the best mother possible.
It WOULD be ugly to make spaghetti for the family, only to aggressively insist that your children’s father eat something else—especially if the kids are right there watching. To help them weather through this difficult change, I think it’s best to go ahead and let dad eat the spaghetti—and offer him a slice of garlic bread, too. Would you do this if you lived separately? Probably not, because he’d be at his house during dinner, and you’d be at yours—unless, of course, it was somehow pick up or drop off time.
To me, the most important thing is that you’re putting the best interests of your children first. It would be damaging to refuse him dinner in front of them, especially when you’ve got plenty. Besides, again, I don’t think that this is a question that the judge would ever ask—and, even if he did, sharing a couple of meals in front of the kids probably wouldn’t be enough to make the judge deny your divorce.
Being an awesome mom, especially during a divorce, is the most important thing you can do. If that means sharing the spaghetti, by all means, share the spaghetti.  Part of being separated is separating, and that can include sleeping on the couch for a period of time–but sleeping on the couch alone isn’t enough to prove that you’re separated.
For more information about separation, or to ask questions about your specific situation, consider scheduling a confidential consultation with one of our licensed and experienced Virginia divorce and custody attorneys by calling our office at (757) 425-5200.