When you reconcile and break up again: Separation in Virginia

Posted on May 21, 2021 by Katie Carter

Personal lives and romantic relationships are inherently messy. That’s a pretty consistent theme that runs through the core of the work we do here. So, although there are some hard and fast rules that we have to contend with (you know, that pesky law thing you may have been hearing a bit about), it’s also true that we all have to take our own path.

Sometimes, that means divorcing your husbandonly to marry him a second time. Sometimes, that means separating and reconciling. Sometimes, it means separating, and reconciling, and then separating again, before an eventual divorce.

If you’ve ever wondered whether you’re on the right path, or whether you could maybe make it work, you’re not alone. And you’re not wrong to wonder! It’s a big deal to get a divorce, so you should feel like you’ve exhausted all the options before you move forward. (Though, also important to note – see above paragraph – even a divorce doesn’t necessarily mean things are over!)

You might be surprised how many people wonder or hope for a different outcome. Some might take a few steps towards divorce, only to take a few steps back and reconsider. There are also people who separate, know it’s the right decision for them, and proceed swiftly with the divorce. (But, hey, those people probably aren’t reading an article with a title like this one!)

What if I’m thinking about a reconciliation, but my husband is not?

If you find yourself wondering about a reconciliation, that’s okay. But, remember, divorce is a two way street. It isn’t just your opinion here that matters.

If your husband is intent on moving forward with the divorce, though, you can’t really stop him – so, in that case, I would advise you to make sure you’re getting good legal advice.

Basically, in Virginia, a divorce can take two forms: either you (1) negotiate and sign a separation agreement, where you agree about how all your assets and liabilities will be divided, or (2) you go to court and let the judge decide.

If your desire to reconcile is making you hold on, even though he’s pushing forward no matter what, you may find your case in court.

While there are plenty of reasons I’d advise you to go to court (like, if he refuses to give you your marital share of the retirement or isn’t willing to pay the kind of spousal support you need), I don’t really advise it just because you disagree with the divorce itself.

Sooner or later, eventually, he’ll get the divorce – and, when that point comes, you don’t want to have exhausted every last penny the both of you have to do it. In general, I think the best course of action is to participate, wisely, in the process and note your objections. (Besides, litigation will only bring you further apart and make reconciliation – whether before or after divorce –less likely!)

I had a client like this before. She didn’t want the divorce, and didn’t respond at all until her husband had actually filed. Faced with a litigated divorce, she started to negotiate – but made sure that the agreement included, in every place possible, a reference to the fact that she did not want the divorce.

If we reconcile, does it matter where we are in the process? Is all our divorce-related progress lost, if we then decide to separate again later?

Yeah, of course it matters!

I don’t have actual statistics on exactly when my clients have reconciled, just my general impressions. But I think, in general, it often happens early on in the process. In many of my cases, I’ll start working, and then my client will totally ghost me.

Sometimes, months later, she’ll resurface and ask me to keep going. In other cases, she’ll resurface and ask for her trust account refund.

In general, though, I’d personally prefer a more open dialogue. I don’t know whether people are embarrassed and unwilling to come forward about exactly what’s going on, but I’d prefer to know.

If it’s early on and nothing has happened, it’s fine to just put your case on hold for a bit. If things have started to happen, though, you may have some more hoops to jump through before you can finalize your divorce, if you actually re-separate again later.

If you’ve already signed a separation agreement

If you’ve already drafted your separation agreement, it can just hold out there in space until you’re ready to decide whether or not to sign.

If you’ve already signed, that’s probably good. Most agreements – including ones drafted at our office – include language about what happens if you reconcile and then subsequently separate. Basically, the agreement survives – so you know that, if you DO reconcile, you can fall back on the terms of the agreement you’ve already agreed to, which is nice.

That means you don’t have to re-negotiate a bunch of stuff, and you know how it’ll all go down if, ultimately, you’re not able to make it work.

The only thing that matters here, really, is the date of separation – which would likely have to be updated. You still have to be separated for a full year (or six months, if you don’t have minor children and already signed the agreement) before you can finalize, and separation is a sort of moving target in a case like this. While you may have separated before, when you reconciled, you canceled out that date of separation. Now, you’ll need to agree on a new one – or go to court to litigate the actual new date of separation, and get your final divorce decree entered. You’ll still have to be separated for the full year (or six months) before you can finalize, too – so it may drag things out a bit longer, but that’s just the way the law works. (You don’t get credit for time served before you reconciled!)

If you’ve filed a contested divorce

You can pause a contested divorce for a period of time, too. If your attorney and your husband’s attorney agree (which they will, if you’re both of a mind to try reconciliation), any court dates can be postponed.

Most courts have a period of time – three years or so – before they’ll purge a case from the docket completely. So, if you reconcile for 6 months and then separate again, you can go back to the originally filed case and proceed as if there had been no delay. If you reconcile for more than the 3 years, the case would be purged – kind of an ugly word for “removed from the docket.

Separate again after 3 years? No problem. You file again, and start from the beginning. The only real downside is that you pay the filing fee again. Any court orders entered from before are, of course, still in full force and effect. A court order stays in place until a new one takes its place, or until the end of a specific term listed in the order.

Life is messy. We get it. If you want to take a break to reconsider your divorce, you’re not alone – it happens all the time! Have an open, honest conversation with your lawyer, and figure out your options. Whether you reconcile and stay together (yay!) or reconcile and separate again (hey, you separated for a reason, right?), it’s all good. We can help you work through all the moving pieces.

And, worst case scenario, if you felt you made a big mistake? You can marry him again – you’d be surprised just how often that happens! There are no rules here, except that you should do everything you can to go forth and be happy.

For more information, or to schedule a consultation with our office, give us a call at 757-425-5200.