Separation Basics

Posted on Nov 3, 2017 by Katie Carter

Separation is one of those areas where a lot of people get tripped up.  I think, most of the time, they really overthink it, and with separation, like with most things, that can cause a lot of confusion.  Because it’s legal (at least, I guess that’s why?) they think it has to be a lot more complicated than it actually is.

In Virginia, you are separated when two things happen: (1) you form the intent to end the marriage (which you can do unilaterally), and (2) you stop cohabitating. We went into some detail into these items on Monday, and, if you’re wondering about cohabitation and all that jazz, including whether you can live separate under the same roof, you may want to pop over and give that article a quick read, too.

Separation basics

But separation goes beyond just those facts.  There’s more you should know about separation, on an even more basic level. Lots of people ask me whether being separated means they have to move forward with their divorce.  In fact, I had a client today email me to ask whether she couldn’t just have an “informal, temporary” separation in the interim period before she decided whether to move forward.

That tells me that there’s a lot of misunderstanding about what a separation is, and what is involved when a husband and wife (or a husband and husband or a wife and wife) separate from each other. Simply put, a separation is the combination of those two things : the intent to end the marriage, and the end of cohabitation.

Separation does not also imply that you’re moving forward with a divorce, or indeed taking any other action at all.  Plenty of people live separate, but never divorce, for years and years.  In fact, there’s such a thing as “separate maintenance” which is basically spousal support paid to a spouse who is separated from her/his spouse for a long period of time. There’s no requirement that you do anything at all after separation.  You don’t have to hire an attorney, you don’t have to file for divorce, and you don’t have to begin negotiating a separation agreement.

You can simply separate and then just exist – for as little or as long a period of time as you like. Many people choose to separate under the same roof, at least for a period of time.  Still others prefer to move out.  It doesn’t really matter (though there may be some underlying implications for your uncontested divorce later on down the line); it matters that you intend to end the marriage, and that you’ve stopped cohabitating.

Can I go to marriage counseling and still be separated?

Yeahhhhh, no.  If you’re separated, you’re intending to end the marriage.  You’re also not cohabitating.  It’s pretty inconsistent with the general idea of marriage counseling, which is that (1) the marriage is not over, and (2) that you’re intent on saving it. That’s not to say that you shouldn’t try marriage counseling.  You just shouldn’t expect that period of time to count towards your period of separation.  As they say, you can’t have your cake and eat it, too.  You have to choose.  Either your marriage is over and you’re ending it (whether you’re actually working towards the divorce or not), or it’s not and you’re in counseling or are not separated.

How long do I have to be separated?

In Virginia, you need grounds to get divorced.  If you’re not using fault based grounds, you’ll have to use no fault grounds – which are based on a period of separation. In Virginia, to have no fault grounds for divorce, you must be separated for one year – or just six months if you meet two criteria: (1) that you don’t have any children under the age of 18, and (2) that you have a signed separation agreement.   Once your year (or six months) is up, you don’t have to do anything.

You can be separated for many more years without taking any further steps, if that’s what you choose.  If, though, you want to move forward with your divorce, you’ll have to either draft a separation agreement to decide how to divide your assets and liabilities yourself, or file for divorce to have a judge determine how your assets and liabilities will be divided. It’s not very complicated, but, for whatever reason, people try to make it that way.

Though people do sometimes disagree about when the separation took place, that’s usually something that we’re able to figure out in negotiations.  After all, there’s advantages both ways, so someone is usually convinced – an earlier separation date, and you can get divorced sooner (and obvious benefit, and one of the first ones people recognize when they start to think strategically); a later date, and it affects interests in marital property (technically, whatever you earn post-separation is yours separately, so that can work in someone’s favor, too).

What if only one of us wants the divorce?

Both parties don’t have to want to divorce; it only takes one spouse to form the intent and leave the marriage, terminating cohabitation.  The other spouse, though unwilling, would then find him or herself along for the ride anyway.  That may mean that you may not be able to convince your spouse (or he may not be able to convince you) to sign an agreement, but divorce is a train you just can’t stop.  If you file for divorce, you’ll be able to move it forward over his objection – though, admittedly, he may be able to make things more difficult or time consuming.   Separation only requires one person.

Do I get a separation agreement before or after I’m separated?

A VERY good question!  The answer is – it depends!  Sometimes, people get separation agreements in place before separation.  Most of the time, though, they wait until after separation.  Really, it doesn’t make much difference, just so long as you have one.  Once you get a separation agreement in place, you’ll be able to move forward with an uncontested, no fault divorce, which is usually (though not always) the best course of action. A separation agreement really has nothing to do with legal separation.  It doesn’t mean that you are or aren’t separated.  But it will help you bridge the gap between separation and divorce, and ensure that your divorce moves forward with as few hiccups as possible.   For more information about separation, to find out whether you’re separated, or to schedule an appointment with one of our divorce attorneys to talk about moving forward post-separation, give our office a call at (757) 425-5200.