If we separate, do we have to divorce?

Posted on Mar 26, 2021 by Katie Carter

There’s a difference between the word “separate” in the way a divorce lawyer uses it, and the way a regular person uses it.

Regular people – non lawyers, I mean – tend to use a separation as a break. Just a period of time where you take a step back, reassess, and, hopefully, figure out how to move your marriage forward.

It can involve a marriage counselor, or a therapist (for each of you separately or for both of you together). It can involve time to really think about what you want, and to determine whether what you want is the same thing or something different. It can involve an opportunity to get a handle on an addiction – to painkillers, alcohol, drugs, porn, sex, gambling, or whatever.

In general, though, I think when regular people talk about separating, they’re doing it with an eye to figure out how to move forward.

The way a divorce lawyer thinks about it, though, is different. A legal separation happens when two events coincide: (1) at least one party forms the intent to end the marriage, and (2) the parties stop cohabitating.

One Party Forms the Intent to End the Marriage

I think the language here is pretty clear. Once you’ve formed the intent to end the marriage, you’re planning on getting a divorce.

It doesn’t take both of you agreeing that the marriage is over, though. Only one of you has to form that intent. But you’ll have to start ACTING on that intent, too, and that’s where cohabitation comes in.

Cohabitation: Living Together as Husband and Wife

Both of those things go hand in hand – the intent to end the marriage, and stopping cohabitation. Cohabitation is what happens when a couple lives together as husband and wife. Both inside of the home and outside of it, they behave as a couple and represent themselves as such.

To end the marriage, you’ll have to stop doing those things, even just for the sake of keeping up appearances. (Maybe especially for the sake of keeping up appearances!)

We’re talking about not cooking and cleaning up after each other, but also not attending church or parties or weddings together. We’re talking about not wearing wedding rings, and not celebrating anniversaries or going on vacations. And, when you have kids in common, stopping all those things can be super challenging.

You’ll also have to commit at this point to stop working on the marriage, too. (Hey, one of you formed the intent to end it, right?) So that really means that marriage counseling should be a thing of the past, by this point.

But, you’ll need a corroborating witness at the end of your period of separation, so it’s important. A corroborating witness will need to be able to testify that you separated – including the whole ‘intent to end the marriage’ bit for the statutory period, and even recognize that the date of separation you alleged is truthful. All this stuff – your testimony, too – is under penalty of perjury. So, it’s important.

…But, what if we legally separate, and we change our minds?

You might be surprised, but that happens! Not every day, but it happens. At any point, you can decide not to move forward with the divorce and get back together.

Reconciliation happens. It happens all the time. It sometimes happens after a separation agreement is negotiated. Most agreements actually contain reconciliation clauses, anyway, so you’re really kind of well protected at that point anyway (at least, assuming that you signed a reasonable agreement to begin with).

Most reconciliation clauses state that the agreement survives a reconciliation and that, if the two of you later separate, that the agreement revives. For some people, that clause (or maybe a marital agreement) gives them the security they need to even consider trying the relationship again. If you think about it, without a marital or a separation agreement, you’re just getting back together on blind faith. If you have the advantage, especially if he’s the one who, say, committed adultery and is dying to get back together, you could use the separation to get reasonable provisions in place regarding your spousal support, which would make you comfortable enough (and trusting enough, since he’s valuing your future financial stability) to try things again. I mean, these are hypotheticals, but having a few things in place can go along way towards showing you how serious your husband is about taking your needs into consideration.

You know what’s even crazier? Lots of people – more than you’d think – divorce and then remarry a second time! So, even once it’s over (at least, over from MY perspective, in the sense that a final divorce decree is entered), if you two aren’t done, you’re not done.
So, just because you separate does not mean you have to get a divorce. But I’d say that, if you’re even considering a separation, it’s a good idea to start asking questions and getting information about your rights and entitlements under Virginia law. Request a free copy of our divorce book, for starters. It’ll help you figure out what you need to know, and how things work.

Still need more? Well, you already know we have a really extensive library with tons of different articles. Chances are, if you search, you can find one on point to help answer those questions that are keeping you awake at night. And, not only that, but we have a monthly divorce seminar – taught live by one of our women-only Virginia divorce lawyers – that you can attend as well. You can ask questions and participate, live and in person.

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