When am I separated in Virginia and what does it mean?

Posted on Apr 16, 2014 by Katie Carter

When you and your husband stop “cohabitating” (living together as husband and wife) and make the decision to end your marriage, you have separated. What it means to be separated is something that differs from state to state, so this definition may be different if you live in another state, but, in Virginia, this is the definition. There is no such thing as “filing for separation,” in Virginia, though apparently that’s the way some other states handle it. In Virginia, you can call yourself separated if either you or your husband has done the following things: (1) made a conscious decision to end the marriage, and (2) begun to live your every day life as though you are no longer married.
What does it mean to stop “living together as husband and wife?”

When we’re talking about cohabitation, we’re talking about the way you behave, both in public and in private. The long and the short of it is that you should ask yourself, “Would I be doing this if we were divorced?” If the answer is no, then you probably shouldn’t do it. We’ll discuss what it means to stop cohabitating in greater detail, though, for the sake of clarity.

Public Behavior during Separation

It’s only natural to want to play the “happy couple” when you’re out in public, because the general feeling in our society is that it’s unseemly to air your dirty laundry in public. By letting people know that you and your husband have separated, it lets others in on a secret that you’d probably rather keep to yourself. It’s letting people know that your life isn’t exactly as picture-perfect as you’d like it to be.

Psychologically, this is a big deal. Especially nowadays, with social media becoming such a looming presence in our every day life, it’s tempting to want to showcase only your highlight reel. Since you know that whatever you post is being viewed by former teachers, classmates, boyfriends, family friends, and others, you probably want to post a very rosy view of your life. You want to show the beautiful family Christmases, the elaborate tropical vacations, the accomplishments, the dreams, the successes—and skirt over anything that doesn’t fit. Admitting that you’re separated and facing a divorce is awkward and uncomfortable, and disrupts the picture perfect persona that so many of us are trying to portray.

Unfortunately, as uncomfortable as it may be, you’re going to have to air that dirty laundry a little bit, because you can’t act like a married couple in public and still claim to be separated to the court later—it’s inconsistent. You don’t have to tattoo “WE’RE SEPARATED” on your forehead or anything, but you are going to have to start behaving, in public, like you’re separated.

So, what does that mean? Well, for starters, it means that you shouldn’t ride together to church, sit next to each other at the soccer game, or host a couples dinner party at your house. You shouldn’t attend the neighborhood block party together, vacation together, or post things to social media sites that contradict your separated status. It may be easier to pretend that things are working for a little while longer, but that won’t get you divorced.

Private Behavior during Separation

Privately, you’ll have to start living a little differently, too. We’ll talk a little later about whether you can live separate and apart in the same home and what changes you should make to your behavior, but here I want to talk about the relationship between the two of you.
Of course, you don’t have to pretend when you’re dealing with your husband. He knows you’re not happy and headed towards divorce, so you don’t have to put on a smile just to save face. Still, let’s talk a little bit about what goes on behind closed doors—and what shouldn’t, at least while you’re separated.

Sex is usually a biggie. Remember, though, that cohabitation is about holding yourselves out as husband and wife. Behaving as husband and wife, according to the courts, doesn’t really have a lot to do with sex. There are plenty of unmarried people having sex, and plenty of married people who aren’t, so if you’ve slipped up with your ex while you were supposed to be separated, that doesn’t automatically defeat your argument that you’ve lived separate and apart without cohabitation and without interruption. It may seem counterintuitive, and I’m certainly not suggesting that you should have sex while you’re separated, just know that if it happens it’s not the end of the world.
Still, you shouldn’t be doing wife-y things for him. You shouldn’t cook his meals, clean up after him, exchange gifts, wear your wedding rings, or celebrate your anniversary or birthdays together. You should sleep separately, and, whenever possible, go about your lives separately. Even though other people can’t see you, you should be behaving like a couple who are separated and moving towards divorce.

So, what’s the big deal? It’s not like the judge will know if I don’t follow your stupid rules.

You’re right. The judge isn’t omniscient. He (or she) will probably not automatically be able to tell that you and your husband continued to go to church together every Sunday during your separation. In fact, it’s unlikely that the judge will ask (unless something tips him off). The judge will, however, ask whether you’ve been living separate and apart without interruption and without cohabitation, and you’ll have to answer either “yes,” or “no” under penalty of perjury. If you say no, your divorce complaint will be dismissed, because you no longer have grounds to get divorce (remember that the grounds for a no fault divorce are that you’ve been separated for the statutory period). A judge has no authority to grant a divorce without grounds, so you’ll have to start back over from square one. Not fun.

Furthermore, you’ll also have to bring a corroborating witness to court to offer testimony to the court about whether you and your husband have indeed been living separately. That person is also under penalty of perjury, and you need his or her testimony in order to have your divorce granted.

Could you get away with fudging the rules a little? Probably. Would I? Well, being an attorney, I’m personally more of a strict rule follower, and I don’t think I would be doing my job very well if I didn’t advise you to follow the rules carefully, too. Not to mention the fact that, if I were you, I don’t think I’d want to spend a year of my life gambling on a judge asking the wrong questions—or planning to commit perjury, even if I never thought in a million years that I’d get caught and charged with it. I’d rather do it right and get it done the first time, so I didn’t have to start over from the beginning and face an entire extra year of separation.

If you start again from square one, you’ll have to do everything over again. If you’ve got a signed separation agreement, you can use that, but you’ll have to re-file your complaint and all that other paperwork with the court all over again, plus pay another filing fee. That means more time and more money spent trying to accomplish the same goal. Most people don’t want to do that over again if they don’t have to; they would rather just get their divorce and move on with their lives. Of course, what you do is completely up to you.

Can we separate and live in the same house?

I get it. The economy is tough, money is tight, and maintaining two separate households while you’re trying to pay an attorney to help you get through your divorce just seems like an impossible feat. Lots and lots of people these days are choosing to try to live separate in the same house prior to filing for divorce, rather than paying the cost of rent and utilities or another mortgage for the other spouse.
In most cases, yes, you can live separate in the same house, but it’s tricky.

We’re separated! Does that mean I’m single?

Keep in mind, though, that even though you are required to live “separately” during your separation period, which means that you should live apart from each other without cohabitation and without interruption for the statutory period, that doesn’t mean that you are single. In Virginia, you are married until you’re divorced. That may sound obvious, but to a lot of people, it’s not. Just because you’re separated doesn’t mean you can behave completely as though you’re single—for example, an affair while you’re separated is still adultery, because you’re still married and having sex (whether oral, anal, or vaginal) with someone who is not your spouse.

Of course, merely separating doesn’t mean that you have to get divorced. Some people choose to stay married indefinitely, even though they are permanently separated. Others separate for a brief period of time, and then reconcile later on. While it’s true that most couples who separate do so as a stepping stone towards their ultimate divorce, it doesn’t always have to be that way. Keep in mind, though, that, until you’re actually divorced, you’re still married, so you’re not legally free to do everything the same way you might be if you were divorced and single.

Really, it’s all pretty straightforward. You’re separated when you decide to end the marriage, and you have to live separate and apart for one year or six months, depending on your unique circumstances. If you have any questions about when you’re separated, how you should behave, separation under the same roof, or your subsequent divorce, give our office a call at (757) 425-5200.