Separation Under the Same Roof

Posted on Sep 7, 2015 by Katie Carter

In Virginia, when you separate, you make a decision to stop cohabitating. Cohabitation is a fancy legal word that basically encompasses everything it means to live together as husband and wife. (and, as you can probably imagine, it deals with a lot more than just sex). There isn’t any paperwork to file to have a legal separation; you just have to form the intent to end the marriage and then, at that point, stop cohabitating. Then, you are officially separated.
Why does it matter? Well, in order to get a divorce in Virginia, you have to have grounds. Either you have fault based grounds or you have no fault grounds—and the basis for the no fault grounds is the period of separation. In Virginia, you have to be separated for a year, unless you meet two criteria: (1) you don’t have any minor children (meaning, you can have children, but they must be over the age of 18), AND (2) you already have a signed separation agreement in place. If so, you can get divorced after just 6 months of separation.
Since your separation period makes up your grounds for divorce, it’s incredibly important. Some judges scrutinize the separation period far more than others, so you’ll want to be cognizant of that beforehand. The way the law is worded, it says that you have to live separately, without interruption and without cohabitation, for a year (or six months, you know, if those other criteria are met).
What do you notice about that? Well, it doesn’t say that you have to live in physically separate spaces. There’s nothing in the statute that mandates that you have to live in one place and he has to live in another entirely separate physical space. So, technically, based on a strict reading of the statute, separation in the same home is allowed.
Lots of people elect to separate, at least initially, and remain in the same home for all sorts of reasons. Some parents tell us that the primary reason was for the sake of continuity for the kids, or to kind of ease them into a transition; other times, it’s because it’s just too difficult to find and secure affordable housing for both parties, at least in the beginning. The pressure of separating and then suddenly needing to move out can be too much and, for whatever reason, many parties decide to stay together.
Most of the time, this doesn’t last forever. It often starts out that way but, sooner or later (and, usually, before the entry of the final divorce decree), one or the other moves out.

What do I need to know if I want to successfully prove that I’m living separate in the same house?

You need to know that separation under the same roof is a little risky. Some judges like it more than others. I’ve never had it be a real problem, but I have had a judge ask some pretty pointed and uncomfortable questions.
What’s the risk? Well, the risk is that you separate for a full year, and go into court for your final divorce hearing. If the judge finds that you haven’t been separated because you’ve lived in the same home, he could dismiss your case. Then, you’d have to start all over again—and really separate for a year. So, ultimately, it could delay your divorce by another year. Definitely not an ideal situation.
Do I think that’s likely? No, especially not in an uncontested divorce. These days, most courts allow divorce by affidavit, which means that we provide our typed up answers to the questions that judges used to hear in uncontested divorce hearings. As long as you provide the satisfactory answers (basically just that yes, you’re separated, yes, it’s been a year, and yes, at the time you separated you intended it to be permanent), you’ll be fine.
Generally, though, it helps to have truly separate residences at some point before your final divorce decree is entered. Judges prefer that.
It’s fairly unlikely that you’ll have a problem, but it’s possible. If you have specific questions about your situation, you should talk to an attorney—before you’ve separated for a year, only to find out that there might be a problem.
What kinds of things should I be doing, if I want to prove that we were separate in the same house?
To show that you’re not cohabitating, you’re going to have to show two things: (1) that you lived like you were separate inside the house, and (2) that you behaved like you were separated when you were outside the house.
Basically, to boil it all down to one single point: you should be living exactly the way you would if you did live in physically separate spaces. Ask yourself, “Would I be doing this if I lived in an apartment on my own?” If the answer is “no,” then don’t do it.
Inside the house, you should begin by using separate bedrooms. Sleeping together, even if you’re not having sex, is definitely one of those things that leads a judge to believe that you’re still cohabitating. Likewise, if you’re still having sex, it’s probably a good time to stop. (Though I think it’s probably safe to say that sex alone won’t kill your case; judges have held that there are plenty of unmarried people having it and plenty of married people who are not, so it’s not the end-all, be-all when it comes to determining whether or not a couple is still cohabitating.)
Also, inside the house, you should stop cooking and cleaning for him. You should take care of your own grocery shopping and your own laundry. When you eat, you should eat separately. It should be clear to both of you, and to any other infrequent visitor to your home, that the two of you are separated.
Likewise, outside of the home, you should give the impression that you’re separated. There’s usually a tendency for people to put on a happy face in front of others, even when things aren’t so good at home, but that’s not good for your divorce case. In fact, it’s advisable that you tell family and friends that you’re separated, and you’re no longer living as husband and wife in the home, even though you’re both still there.
It’s hard to do. In fact, this is probably one of the most difficult parts of the entire process: letting people know your marriage isn’t as great as it may have seemed on the exterior. Probably your closer family members and friends already know something is up, but others might not. It’s better to admit that you’re separated, at least for the purposes of your divorce.
You should stop going out to dinner together, exchanging presents for holidays or anniversaries, going to church together, and so on. Basically, the little things that you used to do as a couple should stop.
It’s definitely not impossible to plan on living separate and apart in the same house, but you’ll have to think about it. It’s easy to fall into the same old predictable patterns and forget that you’re supposed to be separated. You’ll have to be mindful, but it’s not impossible.
For more information about separation in the same home, or to talk to an attorney about your individual case, give our office a call at (757) 425-5200.