Is a legal separation just a pit stop on the way to divorce?

Posted on May 6, 2016 by Katie Carter

For a lot of people, a separation is a time out, not necessarily a step towards divorce. I’ve heard people say things like, “I don’t want to separate, because I’m afraid that is automatically going to lead to divorce—but I really would like a break to figure out what I want.”
Even though separation is often a step away from a divorce, that’s not always the case. Lots of people, for whatever reason, separate first—and then figure out their next steps later on. There’s no reason that a separation has to lead to a divorce (unless, of course, that’s what the parties decide they want to do). Often, it doesn’t lead to divorce at all.
Keep in mind that reconciliation is always a possibility. So, if you feel like you need a time out, ask for a time out. If, on the other hand, he’s asking for a time out—don’t panic.
If I’ve learned anything in the last five years handling divorce and custody cases exclusively, it’s that, when it comes to marriage, separation, and divorce, there’s no right or wrong answer. Every family and every relationship is different and, even though there are similarities, there are just as many differences. When it comes to making the decision to either save your marriage or end it, no one knows better than you.
A separation is definitely a softer option than a divorce, so it’s often a good way to figure out what you want and gain a little perspective. It’s always a good idea to take your time when it comes to making big decisions like this, so don’t be afraid of a separation. I see lots of marriages recover after a separation—and, of course, lots more people separate and reconcile than I see in my office. (Many people who separate don’t consult an attorney until they’ve decided that there’s no saving the marriage.)
Today, and then again next Monday, we’re going to talk about separation. What it means, what happens during a separation, and how you either save or end your marriage after you separate. What steps should you be taking? What does it mean to be separated—and do you really have to follow all the rules? What’s cohabitation, and does someone have to move out? Once you reconcile, what happens if you split up again? What if you decide you just a divorce? And at what point should you start thinking about talking to an attorney and getting some up to date, Virginia specific legal information about what you can expect to happen to you in your specific case? Let’s get started.

What is a legal separation, and what does it mean?

In Virginia, there’s not really any such thing as a legal separation. You don’t have to go to court or file to be listed as separated from your spouse. You don’t need an attorney to decide to separate.
Simply put, you are separated when you (1) form the intent to end the marriage, and (2) stop cohabitating.


I know, I know—I said you have to “form the intent to end the marriage”, and that sounds scary—especially since I just said that you don’t need to think of separation as a pit stop on the way to a full fledged divorce.
But, to be separated, you do have to stop thinking of yourself as a happily married couple. It’s not that you aren’t still married—because you are, and, in fact, you are married until you are divorced—but separation means that you’re considering your alternatives. It doesn’t mean you have to go all the way through with ending your marriage, but it does mean that you, mentally at least, take a real step back from your marriage and consider whether you plan to continue to stay married or move forward with your divorce. That doesn’t mean the marriage has to end, but you do have to stop living together the way you did before, when you were a happy Mr. and Mrs.


At the same time that you form the intent to end the marriage, you also have to stop cohabitating. Along the same lines as forming the intent to end the marriage, you have to also stop living together as husband and wife. (That’s basically what cohabitation means; it’s a fancy legal word used to describe when two people live together as a married couple.)
If the “intent to end the marriage” thing was too loosey goosey for you (and people often tell me that they are uncomfortable with this), ending cohabitation should make you feel better. It’s something concrete that you can specifically pinpoint down to a specific date and time.
At the point that you and your husband separate, you should also stop cohabitating. What does it mean to be cohabitating? It’s pretty easy to tell. Basically, you shouldn’t be living the same way you did when you weren’t separated.
Nobody has to move out, though sometimes that happens. It is possible to live separate and apart in the same home, and most couples try this first.
When you stop cohabitating, you stop doing all the things you did as husband and wife—cooking and cleaning up after each other, grocery shopping, eating together, wearing wedding rings, celebrating anniversaries, and so on. You’ll need to think about the way you’ve behaving inside of the home, and also the way that you’re behaving when you’re out in public. For most people, the temptation is to play happy couple in public—when it comes to divorce, though, that’s not possible. You’ll need to represent yourself to friends and family members as separated, too, for your period of separation to be legally valid.

What if I don’t do those things? That seems so hard!

What I’m talking about is a legal separation—in other words, if you were going to get a divorce, what you’d need to prove to the court to have grounds.
In Virginia, to get divorced, you need to be separated for a year (unless you’re filing using adultery as your grounds). To prove that you’re separated, you’ll have to have a corroborating witness (a third party who can testify) who can tell the court that you’ve been living, both inside of your home and when you’re out in public, like a separated couple, whether or not you’re currently living in the same home.
If you’re only concerned about getting a little distance from your marriage, feel free to make your own rules. Though legally it might not count towards your period of separation (if, for example, you’d prefer not to involve family and friends in your separation just yet and need to keep playing happy couple in public for a little while longer), that’s up to you. It’s totally fine. There’s no rulebook that says you can and can’t do things a particular way, if that works for you.
Feel free to dictate the terms of your own separation based on what makes sense to you and will give you the time and space you need to make decisions. Just because what you’re doing may not qualify under a strict legal definition of what it means to be separated doesn’t mean that it’s not valid, helpful, or appropriate for you in your specific situation. Write your own rules, and do what feels natural to you. I’m telling you what works if you’re headed towards divorce, but that may or may not be what will work for you.
If you later decide to move forward towards a divorce, we can change things to make your separation legally valid for your grounds of divorce. For now, do what makes sense to you.
On Monday, we’ll be back with more information about separation. It’s really NOT just a pit stop on the way to divorce but, in order for it to be successful, you need to prepare yourself. On Monday, we’ll talk more about your legal rights, when you should talk to an attorney, and how to get the information you need to make these big choices for yourself, your children, and your future.
For more information right away, or to go ahead and schedule an appointment with one of our licensed and experienced Virginia divorce attorneys, give our office a call at (757) 425-5200.