How to get a legal separation without a Virginia divorce lawyer

Do you like quick and easy answers? Because, for once in my life, I have a quick and easy answer for you.

To get a legal separation, you don’t need a Virginia divorce lawyer! Anyone and everyone can legally separate from their spouse without the help of an attorney. That means you – yes you – can legally separate without hiring an attorney.

In Virginia, to get a legal separation, you have to do two things: (1) form the intent to end the marriage, and (2) stop cohabitating.
I’ve written on this topic literally every which way from Sunday, so I’ve covered these things about a million different ways in a million different places. But I still get so many questions about it!

To legally separate, there are no forms to fill out. There is nothing that must be filed with the court. You just have to meet the two criteria – (1) intend to end the marriage, and (2) not cohabitating.

Once those two things exist, you’re separated. No lawyer required.

So, what does it mean, to intend to end the marriage?

Well, the first and most important component of the “intent to end the marriage” bit is that both parties don’t have to agree at this stage. Only one party has to form the understanding that the marriage is over.

It’s loosey goosey, which is a little annoying. When did it happen that you formally decided to end the marriage? You may be able to answer this, specifically, with an exact date and time, or a fight that the two of you had after which you decided it would no longer be possible to save your marriage.

In general, if you’re attending marriage counseling, you’re not separated. (If you’re in marriage counseling, your goal is to save the marriage, right?) I mean, I guess technically you could have formed the intent to end the marriage, and still be in marriage counseling, but – remember – this is a two part test.

What does cohabitation mean?

You have to combine your intent to end the marriage with ending cohabitation. These two things go hand in hand. That’s really why only one of you has to form that intent; because, once the cohabitation stops, you’re both more or less in on it, whether you both like it or not.

Whether you’re separated under the same roof or not, the same guidelines more or less apply, so it can be helpful to take a look at them. You should be living the way you would if you lived in two separate physical spaces, and that’s a general benchmark that I usually point out to any of my clients or potential clients who are unsure.

It’s how you behave both inside the home and outside of the home. Often, it’s the outside bit that’s a real challenge, because the temptation is to play the happy couple in public. I can’t tell you how many times I’ve heard about couples who are dead behind closed doors, but still work hard to keep up pretenses outside of the house.

But remember: it’s not enough to allege a date of separation, even if it’s true. You’ll need a corroborating witness who can testify that you have been separated, so you’ll have to let someone in on the truth! Your husband agreeing isn’t enough; you need independent, third party corroboration! It’s a statutory requirement!

So, all that to say, you absolutely do not need a lawyer to legally separate in Virginia – but you will need to follow these criteria in order to prove it later. And, since your period of separation is part of your grounds for divorce, it’s super important! (Spoiler alert: you absolutely have to have grounds to get a divorce – or even to file for divorce – in Virginia.)

Actually, a lawyer can’t even help you that much with this bit. You’ll have to separate, and continue to live separate, on your own. A family law attorney can help explain to you what legal separation means, or analyze your situation to help you determine if you’re actually already legally separated, but we can’t make you separated. Sometimes I almost wish there was a form to fill out and file with the court, because it’d be so much easier – but that’s just not how it works. Depending on your perspective, that might be either a really good thing (you don’t have to hire a lawyer at this stage if you don’t want to) or a really bad thing (because it’s not so cut and dry as referring to a particular document and pointing out that you have been separated).

For more information, or to schedule a consultation with one of our licensed and experienced Virginia divorce and custody lawyers, give our office a call at 757-425-5200.

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