Can we be in marriage counseling and still be separated?

When a husband and a wife legally separate from one another, they separate with the intention to end the marriage. Then, they stop cohabitating. Cohabitation is a fancy legal word that describes the way two people live together as a married couple. When you are cohabitating, you’re behaving a certain way both inside and outside of the home.
When you’re inside the home, you cook and clean up after each other. You eat the groceries that were purchased for the family. You do laundry and prep lunches. You share a computer, and sometimes in the evenings you sit down and watch TV together. You sleep in the same bedroom, share a closet, and use a shared bathroom.
When you’re outside the home, you go out to dinner. You ride together to events, like church and parent teacher conferences. You celebrate milestones—like anniversaries. You exchange gifts. You visit with family and friends. You attend (and throw) parties.
You represent yourselves as husband and wife—and, if not happy, you’re at least united.
When you separate, you stop doing all those things. You live the way you would if you were completely separate. And, the entire time, you do so knowing that you intend to end the marriage.
When you’re in marriage counseling, or doing whatever else you might choose to do to work through the issues in your marriage, you’re talking to each other. You’re going on dates. You’re having sex and trying to work towards getting back together. You’re trying (obviously) NOT to end the marriage.
It’s pretty inconsistent to say, on one hand, that you’re separated and planning to end your marriage, and, on the other hand, that you’re working on saving your marriage. This is definitely one of those instances where you just can’t have your cake and eat it, too.
There are a couple separate but related issues associated with the desire to both separate and try to save the marriage.

Issue #1: You want that one year of separation to start running so that you can move forward with divorce quickly in the event that things don’t work out.

I get it. A year is a long time. And you don’t to waste any longer than you have to just waiting on a deadline. Still, you can’t really start the separation without working through your issues in marriage counseling first.
I’ve written before that a legal separation in Virginia is a pretty loosey goosey, and it is in many ways, but in many ways its not. Legal separation in Virginia isn’t something that you have to go down to the court and file for; it’s more of a mindset. You make the decision to end the marriage, and then you stop cohabitating. There’s no paperwork and no attorneys needed, but it is kind of a landmark decision. It’s loosey goosey in the sense that there’s often no specific, pin-pointable day that we can look to and say, “That was the actual, specific day when I decided I didn’t want to be married to him anymore.” It’s not usually like that.
It’s not loosey goosey, though, in the sense that you really can’t just dip your toes in. You’re either separated or you’re not. There’s no “Maybe I’ll try separation and marriage counseling,” so there’s also no real way to get a jump start on that one year of separation. You’ll have to do it like everyone else: try marriage counseling first, and then separate later. You’ll have to wait through that whole year of separation after you decide to end the marriage.
Why? Because the period of separation makes up your grounds for divorce, and you have to have grounds in Virginia to get divorced. If you fudge it, there are a lot of risks. For one thing, when you go in for your final divorce hearing (or you fill out your affidavits for a divorce by affidavit), you’ll have to testify under penalty of perjury. You have to tell the truth. If the judge asks you a question and you aren’t able to answer it to his satisfaction, you risk your request divorce being denied—and then you’ll have to start your one year of separation over from scratch. So, the risk is really two fold: you risk a conviction for perjury, and you risk your divorce being denied. Either way, it’s not desirable.

Exception: You can get divorced after just six months of separation if you (1) don’t have any minor children, and (2) have a signed separation agreement already in place. Otherwise, though, you’ll have to wait the full year.

Issue #2: You want to know, or at least have some clarity, about how the assets and liabilities of the marriage will be divided.

It’s hard to focus on saving the marriage when you’re too worried about how the divorce might play out. For a lot of women, they have a specific concern that they need to have addressed; living in uncertainty is just too overwhelming and upsetting for them. It’s difficult to focus on saving the marriage and still keep room in your head for worrying about whatever else is keeping you up at night.
I had a consult recently with a woman who was worried about two things. First and foremost, of course, she worried about custody of her 15 year old daughter. Second, she worried because she was taking on a role as partner in the company where she worked, and would soon have a stock option opportunity—that she was planning on exercising.
But she also wanted to work on her marriage. Fine, I told her. In fact, good for you. The last thing you want is to hurry through the divorce when there are any doubts lingering in your mind. That being said, though, sometimes you have to take specific steps to protect yourself.
I told her (and now I’ll tell you) that it might be worth considering drafting a marital agreement. Since you’re not separated, it’s not really time to draft a separation agreement.  Still, a marital agreement is very similar in a lot of ways – it divides the assets and liabilities in the marriage, and turns into a separation agreement if you decide to separate later – but you can draft it and sign it before you separate. It’ll function just like a separation agreement, and you can handle the things that are making it hard for you to sleep at night, all without separating. That doesn’t mean that your one year period of separation has started to run; it just means that, if you later decide your marriage can’t be saved, you already have your separation agreement in place.
I find that it’s often really helpful for people to know what to expect if things don’t work out. In a lot of ways, that can be a powerful added incentive to reconcile and make the marriage work. If nothing else, though, it ensures that everyone knows what they’re signing on for—and that they can focus on the real issues, rather than getting caught up in worries about what might happen if the divorce progressed.
Just because you’re not separated yet doesn’t mean you don’t have options! For more information, to talk to us about separation, or to meet with an attorney regarding a marital agreement, give our office a call at (757) 425-5200.

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