What is cohabitation? Am I cohabiting?

Posted on Oct 28, 2020 by Katie Carter

Cohabitation is a key component of legal separation in Virginia. For a lot of reasons – chief among them being the fact that separation is a sort of loosey goosey concept here in Virginia – we get lots of questions about separation.

When are you separated? Am I separated? Do we have to sign something to say that we’re separated?  Is there a document to file to prove separation?

There’s a lot of mystery surrounding separation for a lot of people, and it’s (more or less) easy to explain. You are separated when two things happen: (1) one of you forms the intent to end the marriage, and (2) you stop cohabitating.

The whole “forming the intent to end the marriage” thing is a little wonky, because only one of you has to form that intent. It’s easy to spiral down a rabbit hole, thinking, well, what if he decided he was done 15 minutes after we said “I do”? Or, what about that big fight after Christmas last year? Was THAT when he was done? Or… If it has been a long time coming for you, at what point did you decide? Can you even pin point it? Would he agree or acknowledge that date himself?

But hold on. Slow down. Take a deep breath. There are TWO components here that affect whether or not you and your husband are separated. Only one is the point at which you decided the marriage was over. But the second part – the cohabitation piece – is equally important. You have to combine the two, the intent to end the marriage AND no longer cohabitating.

What is cohabitation?

Cohabitation is one of those fancy legal words that lawyers use. But, in this case, it has a pretty specific and – I think, at least – easy to understand definition. Cohabitation relates to living together as husband and wife. When you stop living together as husband and wife, whether you do so under the same roof or whether you live in completely separate physical spaces.

Since you combine the two, it’s much easier to see whether a legal separation has taken place. Just thinking about a divorce, or even deciding that you want a divorce and beginning to act on it, is not enough. You have to stop cohabitating.

So even though it only takes one spouse to form the intent to end the marriage, both stop cohabitating. That doesn’t mean that your spouse is necessarily in agreement with you, but it does mean that you stop sleeping in the same room, stop wearing wedding rings, stop cooking and cleaning up after each other, stop attending parties and weddings together, stop attending church together, and so on. It’s both about behaving inside the home as a separated couple, and also about behaving outside of the home as a separated couple.

You should be representing yourself, both in the way you carry yourself, and in the way that you speak to others about your personal situation, as a separated person. Its not going to be acceptable to the court for you to play happy couple in public, even though it’s probably more comfortable for you to do it that way. There’s no requirement that you tell complete strangers, unless it feels natural to you. But you should not be pretending that all’s well at home. To at least your close friends and family members, the fact of your separation should be known.

And, at any rate, chances are good that you’ll be able to resolve your divorce in a separation agreement – most people do – so you’ll need a corroborating witness when it comes time to move forward with your uncontested divorce, so better to start building that up now. Even if you wind up litigating your divorce instead of moving forward with the uncontested divorce, you’ll likely need a corroborating witness, since all of the fault based grounds of divorce require that you are separated a year before finalizing. Only adultery is the exception to this rule, and it allows you to move forward with an immediate divorce, though almost no one ever does.

Am I cohabiting?

It can be a blurry line, to say the least! If you’re living separate under the same roof, its even more blurry.

Technically, we advise our clients who are living in the same home to act as though they lived in separate spaces. So, separate bedrooms, separate meals, separate everything, except as it relates to keeping the children mentally healthy. No need to be viciously ugly just to prove separation!

Of course, it can be tricky, especially if he’s determined not to follow the rules. He’s eating your groceries, perusing your leftovers, or even trying to get you to sleep with him. (Sorry, but it happens all the time!) You’ll have to stick to your guns, and insist on being as separate as possible. It’s entirely possible that you wouldn’t have any problems later on – after all, in most uncontested divorces these days we just testify via affidavit that you were separated, and no on really digs into the nitty gritty details of what that might have looked like – it could also be his attempt at a “gotcha”, especially if he’s not thrilled at the idea of a divorce.

You shouldn’t attend church or other events together, either. Even for things related to the kids, that doesn’t mean you have to pretend to be a happy couple – in fact, you shouldn’t! Ride separately, sit separately, whatever you need to do to demonstrate that you’re not together-together, even if you’re both there to support your children.

Basically, to answer the question, “Am I cohabitating?” ask yourself, “Would I do this if I lived in my own apartment and he lived in his?” If the answer is “no”, don’t do it. If the answer is “yes”, you’re probably fine.

But recognize, too, that the world isn’t perfect. I once had a woman at one of my Second Saturday seminars ask me whether it was a problem if the parties used the same spices while they were separated. I had to laugh, but it also made me look at what I was saying. Obviously, if you lived in separate spaces, you wouldn’t share the cinnamon! But probably it’s also safe to say that the judge won’t ask you about the care or custody of the cardamom, so you’re likely okay. But still.

In an uncontested divorce proceeding, even if you’re moving forward by affidavit, you’ll make representations to the court under oath, under penalty of perjury. If you’re in court, you’ll make those same representations to the judge – to his face! So, make sure that your story is one you can tell with a straight face and a clear conscience.

Cohabitation isn’t all that tricky to determine, and it’s really the key piece of the separation equation. It’s certainly not just about when a subjective frame of mind came into play! It’s the combination of those two things – the decision to end the marriage, and ending of cohabitation – that, together, make a legal separation.

For more information, to discuss your legal separation, or to explore your divorce options, give our office a call at 757-785-9761.