Separation Before Divorce in Virginia

Posted on May 25, 2018 by Katie Carter

You’re probably familiar with the idea that you have to separate from your husband before divorce – not just in Virginia, but in most places. Every state (and indeed every country!) handles this a little bit differently, and the required period of separation differs from one to the next. Sometimes, separation of longer duration is required in instances where minor children are involved. Divorce is one of those areas of law that is regulated on a state level, rather than a federal level, so things can be dramatically different from one state to the next, even in neighboring states. You might think that, for example, on an ideological level, Virginia and North Carolina would be similar. In some respects, you’d be right, but in others you’d definitely be wrong.

Separation before divorce is required in Virginia

Most states require separation, and Virginia is no exception. In Virginia, in order to get divorced (unless your grounds are adultery – then you qualify for an “immediate” divorce) you must be separated for one year.

Are there exceptions to the rules regarding separation before divorce?

Six Month Separation

Yes. If you do not have minor children (children under the age of 18) AND you have a signed separation agreement, you can be divorced after a separation period of just six months. You have to meet both of those criteria – no under age children, AND a signed separation agreement – in order to qualify.

Of course, that doesn’t mean that on the last day of the sixth month that you’ll immediately be divorced; no, that’s the day that you can FILE for an uncontested divorce. Depending on the court, your actual divorce could take place 1-3 months later, depending on how backed up the docket is and how quickly you/your attorney can get the appropriate documents correctly prepared and filed with the court.
Fault Based Divorce

As we’ve already mentioned, if you use adultery as your grounds, you qualify for an “immediate” divorce.  It’s often not immediate, though, in real life, since practical concerns come into play. Most attorneys end up waiting to schedule trial until their clients have already been separated a year regardless (and, certainly, it’s virtually impossible to get a trial date before 6ish months have elapsed in many courts in the Commonwealth) because if you can’t prove adultery to the satisfaction of the judge, without having been separated a year, your divorce would just be dismissed, rather than granted on different grounds.

Still, fault based grounds in general (all the fault based grounds: adultery, cruelty, apprehension of bodily hurt, desertion, abandonment, and felony conviction) have one slight advantage over no fault grounds (which are just based off of having satisfied the statutorily required period of separation) in that you can file for divorce right away, without having to wait until the one year (or six months, if you don’t have minor children and you have a signed separation agreement) has lapsed.

Why? Well, in Virginia, your grounds must exist before you can file. If you’re using no fault grounds, you can’t file until you’ve separated for that one year (or six months, if you’ve met the aforementioned criteria). If you’re using fault based grounds, those grounds exist at the time you filed, so you can get your divorce “started” sooner. You can schedule a pendente lite hearing, conduct discovery, and schedule a trial date. Of course, most of these things aren’t usually necessary in uncontested, no fault divorces, but it would definitely seem to the casual observer like more things are happening to begin to move the case forward. And there are certainly reasons (like if you need temporary child or spousal support, or custody and visitation, established early on) you might choose to do it this way, too.

In that way, you probably COULD schedule a hearing on the date that you had been separated for a year (or six months) much more easily than could someone who used no fault grounds as the basis for their divorce. So it could potentially be faster, in the sense that you wouldn’t have to wait for the complaint to be filed and served, a responsive pleading filed, final decrees and other documents drafted – as many things would have already been done, and the others could have been prepared and circulated beforehand.

Is filing on fault the best choice for you? Probably not if you only aim is being separated a shorter period of time, or finalizing more quickly. Litigated divorces (and fault based divorces are always litigated) are the most expensive, time consuming, and stressful, generally speaking. Though there are reasons we choose to file them (because one party refuses to sign an agreement, because we don’t have sufficient information regarding the parties’ assets and liabilities, and so on), we don’t do so willy nilly – it’s an expensive proposition! For more information, it’s probably a good idea to talk to an attorney one on one about your unique circumstances and available options.

Separation before divorce under the same roof

Can you live separate under the same roof before divorce? This might be the most common question ever. Simply put – probably yes. I’ve not had a case where separation under the same roof has been a problem, though, presumably, of course, it could be. A judge could find that, given your behavior during the separation period, you weren’t actually sufficiently separated to satisfy the statute, especially if he questioned you at length about your behavior during that time. In an uncontested divorce, I find that generally doesn’t happen – judges ask common questions about when you were separated, whether since that time you lived separately, and if you intended for that separation to be permanent (yadda, yadda, yadda). But, of course, it could.

So, I say yes, with reservations. You really should be living, as much as possible, in the manner in which you’d be living if you lived in completely separate physical spaces. It’s also about how you behave inside of and outside of the home. It’s not just that you’re sleeping in separate bedrooms and not cooking for or cleaning up after each other (though that’s certainly part of it). It’s also about the fact that you’re representing yourself as separated to family and friends, and not putting on a happy face in public. You shouldn’t be attending church or other events together, celebrating date nights, or attending parties together, giving the allusion of a normal, happily married couple. I know it’s uncomfortable, but, hey, you’ll have to tell people at some point, right? If you’re planning on separating under the same roof, you should do so sooner, and with more transparency. Ideally.

So, obviously, separation before divorce is a thing. An important thing. And it’s something you should factor into your divorce timeline. Even if your divorce is fault based, chances are that it’ll take a year or more to finalize, even with filing earlier. (In fact, generally speaking, fault based divorces almost always take longer than a year. What I said earlier was more theoretical than what we actually see happen in practice.) You’ll have to be separated, and you’ll have to prove it to the judge. So, bear with me here… This is going to take a minute. In the meantime, you’re in the right place, and you’re asking the right questions. Why not get as informed as humanly possible? Request one of our free divorce books or reports, and educate yourself on the divorce process in Virginia. We’re here to help! Give us a call at 757-425-5200 if you need any more information, or would like to schedule a consultation with me or one of our other awesome (I may be biased, but it’s true!) divorce and custody attorneys.