For most people, there is a period of time between separation and divorce where the soon-to-be divorcing parties live together under the same roof, often with their children. This is not so much a desirable situation – in fact, I think you could easily argue that it is anything BUT desirable – but it is often an economic necessity.
In Virginia, in order to be legally separated (which is important because it is a requirement for both fault and no fault grounds of divorce, with the possible exception of adultery – though don’t get too excited) you have to (1) form the intent to end the marriage, and (2) stop cohabitating, or living together as husband and wife.
The ‘intent’ piece is usually easy, unless we come up against a marriage counseling issue. I think most family lawyers would argue that if you’re still attending marriage counseling together, you haven’t formed the intent to end the marriage. Right? I mean, what are you doing in marriage counseling if not actively trying to save your marriage?
It’s the cohabitation piece that comes into question in a separation under the same roof case. When we say cohabitation, or discuss whether a couple is cohabiting, we’re looking at the way they’re living. Are they holding themselves out – representing themselves as – a married couple? Would the average, random person on the street look at those two and think of them as a couple?
We can quantify this in a number of different ways, both when we look at how you behave inside of the home and how you behave outside of the home. Generally speaking, it’s easy to do inside the home, because people are much more authentic when the eyes of others aren’t on them.
How should we behave inside the home?
Inside of your home, you should be sleeping in separate beds and/or separate rooms, cooking and cleaning for yourselves, and eating separately. You should live like roommates; casually passing in the hallways or on the stairs, but not necessarily making time to do things together or for each other.
How should we behave outside of the home?
Outside of the home, you should represent yourselves as a separated couple. You should stop wearing wedding rings, celebrating anniversaries, exchanging gifts, and attending events together as a couple. You shouldn’t go out to eat, travel for vacations, attend church, weddings, block parties, or other community events together.
The reality is that legal separation is HARD.
It’s difficult to be legally separated, no matter how you slice it. Most people live separately under the same roof – even though that creates difficulties in some cases – because, financially, it is difficult to afford to live in two different physical spaces. To continue to pay your existing rent or mortgage and to still have enough left over for a second space, especially before you’ve had a chance to resolve larger issues in your separation agreement, is something that not many people can do. If you can’t, you really shouldn’t feel bad.
Don’t kid yourself, though: living separate under the same roof isn’t the easy way out.
It’s easy to think, “Oh, well, we’ll just stay here for now,” because, well, the reality of the situation demands it. In some ways, I think it’s comforting, too, to imagine that you can maintain the status quo just a little bit longer.
It’s not an easy time, though. Once the cat is out of the bag – meaning, you’re both aware of the situation as it relates to separation, divorce, and child custody – things often get worse before they get better. I mean that a bit as a warning, of course, but I also don’t want to unnecessarily alarm you.
For many people, it’s a contentious – but not necessarily dangerous – time. In abusive relationships, though, separation is often the tip of the iceberg. In all abusive relationships, there was a time before he was abusive, right? No one gets into a relationship where they are beaten or belittled from the word go; it just doesn’t happen. For many abusive men, the point where the woman decides to end the relationship is one that spurs on domestic violence.
In other cases, it may have happened before, too, but that doesn’t mean divorce and/or separation is any less dangerous. In fact, I’d argue the opposite. If he has been abusive before, he likely will be again. It’s like a band aid; once it’s been ripped off, it doesn’t go back on.
Living under the same roof can make these issues worse, kind of like how we experienced a rise in domestic violence around the pandemic. People being at home without much else to do in a relationship that is not healthy is a recipe for disaster.
So, you likely WILL live separate under the same roof for a period of time, but you should not go into this period – especially if your relationship has been abusive – without at least being aware of the risks, having a safety plan in place, and familiarizing yourself with the steps related to getting a protective order in place, if that becomes necessary.
For more information or to schedule an appointment, give our office a call at 757-425-5200.