How do I file for legal separation in Virginia?
In Virginia, you have to be separated to get a divorce. In fact, you have to be separated for a year for most types of divorce. (The notable exception to this rule is divorce when you’re using adultery as your grounds, but you should read up on this, and its specific limitations, HERE if that’s something you’re considering.)
But what’s a legal separation? How do you prove that you’ve been legally separated? What forms do you need to fill out? Is that something you need to do at the courthouse? If you’re like most women, you have a lot of questions!
There’s definitely good and bad news when it comes to legal separation.
The good news about legal separation
Legal separation is not a specific legal status that you have to go down to the court and file for. You do not need a lawyer to separate. There’s no paperwork to do. Nothing that requires any kind of expertise. You don’t even have to go to the courthouse.
You are legally separated when two things happen. First, you form the intent to leave the marriage and, second, you stop cohabitating.
It only takes one person to form the intent to leave the marriage. And by “leave”, I don’t necessarily mean physically leave, though that happens in some cases. You decide that the marriage is over, and that you’re going to take the next steps towards divorce.
Then, you stop cohabitating. Cohabitation is a fancy legal word we use to describe when two partners live together as a married couple. When you live together as a married couple, you live in the same home, sleep in the same bed, have sex, cook and clean up after each other, grocery shop for each other, etc. I mean, you’ve been married; you sort of know how it goes (or, at least, how its supposed to go).
The combination of these two things – the decision to end the marriage and the end of cohabitation – is what makes for a separation. Just sleeping in the same bed, without really deciding to end the marriage, doesn’t mean you’re separated. It’s when you unite the intention to end the marriage with the action to behave as though you’re separate that you’ve begun a period of legal separation.
If you’re wondering, “Can I do ___ and still be legally separated?”, it’s a good idea to ask yourself, “If I were living in my own, separate physical space, would I do ___?” If yes, then you’re probably fine. If no, then I think it’s wise to reconsider. If you’re separated, you should be behaving as though you live separately, like strangers.
The bad news about legal separation
The bad news, though, is similar to the good news. You don’t have to go down to the court. You don’t have to file any paperwork. So, there’s often not any proof of what you’ve decided or what you’ve been doing, so it can be tricky to prove that you’re separated.
In most cases, this isn’t a problem because a few days (or even months) here and there doesn’t account for much of a difference in terms of how assets are divided. In certain, limited situations, it can be problematic, but I would say that, to begin your case, don’t worry about this too much. Mostly, these issues are resolved later on anyway, but, even if they aren’t, there’s nothing you can do right this minute to eliminate those potential problems.
If you intend to be separated, stop cohabitating. Invite witnesses over or be around others who can testify to the strength of your separation and, mostly, it should be fine.
If I’m separated, does that mean I have to have a separation agreement?
No, a separation agreement is separate from being legally separated. A separation agreement is a legal contract that divides the assets and liabilities between the parties. Legal separation refers to your intent to end the marriage and move towards divorce.
You can get a separation agreement in place at the same time as you legally separate, or long after you’ve been separated. You can get a separation agreement and not ultimately divorce – ever, or for a long period of time. You can get a separation agreement and later reconcile. Separation and the separation agreement are separate and distinct parts of the process.
How long do I have to be separated?
In Virginia, if you use no fault grounds, you must be separated for one year, or six months if (1) you don’t have any minor children, and (2) you have a signed separation agreement.
If you use fault grounds, you must be separated for a year, unless your grounds are adultery, in which case you could (theoretically at least) be granted an immediate divorce.
What if I can’t get a separation agreement in place?
If you can’t get a separation agreement in place, then you can’t get an uncontested divorce. We can’t force your husband to negotiate with you; we can’t force him to agree to your terms. If he won’t agree (or if you won’t agree to his terms!), all we can do is go to court and let the judge decide.
Without a separation agreement, your divorce may take longer and cost more, but it has nothing to do with whether you and your husband are legally separated. You can be legally separated without a separation agreement for years and years, or even forever, if you choose not to move things forward in any other way.
Legal separation is an important part of the divorce process, and, in some ways, it’s a little tricky. If you’re having trouble, or are wondering where to start, a consultation with a local attorney can be a good idea. For more information, or to schedule a consultation with one of our licensed, experienced, women-only attorneys, give our office a call at 757-425-5200.