How to legally separate in Virginia

Divorce law is one of those areas of law that is very state specific, so it’s hard to know when you go from state to state whether things will be similar or very, very different. It can go either way, so it’s definitely best to check up on the specific laws that apply to whatever particular state you may be planning to file for divorce in.

There are certain parts of divorce that we all know about, usually because we see the news or watch movies or are just generally aware of the world around us. I see celebrity divorces all the time where the couples cite “irreconcilable differences.” Did you know that, in Virginia, irreconcilable differences is not one of the available grounds for divorce? (We have no fault, which is very similar.) Likewise, we’re all pretty familiar with the idea of common law marriage. (In case you aren’t, a common law marriage is one that forms when a couple lives together for a certain amount of time without actually solemnizing the marriage with a ceremony. The couple lives together and acts like a married couple, and at some point the state recognizes it.) Lots of people are surprised to find out that common law marriage doesn’t exist in Virginia, either. In fact, it no longer exists in most states, but people go on thinking that it does because, somehow, most of us have heard about it.

Just because one state does it a particular way doesn’t mean that another state has to do it similarly. Each state has a lot of freedom to establish their own laws, so there are often a lot of differences from state to state. You would probably not be surprised at all to find that California’s laws are a little different from Virginia’s and Texas’s laws, but it’s also sometimes a surprise to women that Virginia and North Carolina are not similar at all, even though geographically they are very close.

It’s very important to get familiar with the laws in your state before you start to plan for your divorce. It may be that things are a lot different from the state where you grew up or the state where your best friend recently got divorced. The best time to find out about the laws being different is before you’ve made any big decisions.

Legal Separation in Virginia

In some states, you have to go to the court and file for a legal separation. In Virginia, there is no such thing. You become separated when one of you decides that the marriage is over. Of course, it’s not quite that easy—you’ll also have to begin acting on your decision to leave the marriage. That doesn’t mean that you’ll have to move away or live in completely separate physical spaces (we’ll talk more about living separately in the same house in a minute), but it does mean that you’ll have to behave as though you and your husband are headed towards divorce.

So, what does that mean? Well, basically, you can’t say that you’re separated in your head and then play the happy married couple in public. Whether it’s just the two of you together or whether you’re going out in public, you’re going to have to stop representing yourself as a married couple. That means that you should stop wearing wedding rings, exchanging gifts, celebrating holidays and anniversaries together, and basically doing whatever you did together as a couple during your marriage. When you’re in public, you’ll have to stop going to church together, attending parties together, and generally putting on a happy face in front of other people. You don’t have to act devastated or tell all of your business to the checkout girl at the grocery store, but you have to represent yourself truthfully and accurately. You probably should admit that you’re separated when it comes up in conversation and, whenever possible, you should ride and sit separately at events that you might both be attending.

Being separated means that you should stop “cohabitating,” or living together (and representing yourselves) as husband and wife. So, basically, it means that you have to stop doing all the things that people who are husband and wife tend to do. It means you should stop having sex, even though the courts have recognized that sex isn’t really the defining characteristic. After all, there are plenty of married people who don’t have sex, and plenty of unmarried people who have lots of it. Still, to be on the safe side, you should probably stop having sex.

There are plenty of other things that married couples tend to do, and it’s important that you also stop doing all of those things as well. You shouldn’t be cooking for and cleaning up after each other. You shouldn’t do each other’s grocery shopping, or sleep in the same bedrooms. It’s really pretty easy to tell what you should and shouldn’t be doing, though. Just ask yourself, “If we lived in completely separate physical spaces and he was not my husband, would I be doing these things?” If the answer is no, then you probably shouldn’t be doing whatever it is while you’re separated.

Proving you’re separated to the court

But, seriously, does it even matter what you’re doing behind closed doors? Or even out in public, for that matter? If the two of you want to get divorced, it shouldn’t matter whether you hold hands at a romantic candlelit anniversary dinner or attend church functions together arm in arm during your period of separation. Isn’t it private, after all?

Well, no. It’s not. To get divorced, you have to have grounds for divorce. If you don’t have fault based grounds, you’re going to have to use no fault grounds. If you don’t have no fault grounds, either, the judge can’t grant your divorce. He doesn’t have the authority to grant a divorce that doesn’t meet the statutory requirements. It’s not his fault. He just can’t do more than what the law allows him to do. So, at some point, it is the judge’s job to make sure your divorce conforms to what is allowed by law.

To get a no fault divorce, you have to be separated for a certain amount of time, otherwise you don’t qualify. In Virginia, you have to be separated for a period of one year. If you don’t have minor children (either you never had kids, or your kids are over the age of 18) and you have a signed separation agreement, you can get divorced after being separated for just six months.

But you can’t really just say you’re separated and be done with it. You have to walk the walk and talk the talk. If you’re getting a no fault divorce, you’re probably negotiating a separation agreement. You could also litigate your divorce in the court (though that’s unlikely, because it’s rarely advantageous to do it this way). Either way, though, you’re going to have to testify to the judge about your separation.

If you’ve negotiated a separation agreement, you’ll either have to go to court for an uncontested divorce hearing or get a divorce by affidavit. Either way, whether you’re testifying physically in front of the judge, or you’re just signing something asserting that you meet the statutory requirements for divorce, you’re making a sworn statement. Penalties for perjury apply. The judge will need to be satisfied that you’ve been separated for that period of time in order to be able to grant your divorce. So, really, it’s best that you at least try to be as separate as possible during your period of separation.

If your divorce is litigated, you’ll really want to be as careful as possible about whether you’re sufficiently separated. Most of the time, in uncontested divorce hearings or divorces that are granted by affidavit, the judge isn’t really too fastidious about the details. He asks a question about whether you’ve been separated for the statutory period with the purpose of ending the marriage, and he just wants you to say yes. In most cases, he won’t ask in too much detail about what you did during your period of separation (unless, for some reason, he smells a rat), even though he could. In a litigated divorce, though, things are contested. You’re fighting over things, or you wouldn’t be in court. It’s very likely that the judge will be a little more skeptical and ask a few more questions. The last thing you want is to have your divorce denied because you weren’t really living separately the way you should have been, so be careful! It’s better safe than sorry, so follow the rules.

Separation in the same house

Traditionally, when a couple decided to separate and get divorced, one spouse would move out of the marital residence. Usually, it was the husband who moved away, usually to a kind of seedy bachelor pad type apartment, so that the wife could stay in the marital residence with the children and they would be disrupted as little as possible.

These days, there’s no such thing as “usually.” Almost every single couple figures out how to navigate the tricky waters of divorce and separation in their own unique way. For some people, this means that the wife moves out. For others, it means that they try to live separately in the same house.

Technically, the statute doesn’t allow or prohibit this. It says you have to live “separate and apart, without cohabitation and without interruption” for the statutory period. It doesn’t say that to live separately you have to live in separate physical spaces, but it doesn’t say that separation in the same house is allowed, either. Ultimately, it’s up to the judge to decide whether or not he will grant a divorce when your separation period has been in the same home.

It’s probably not an ideal situation, and most people would prefer to be able to live in completely separate physical spaces for their own peace of mind and mental and emotional well-being. Still, it’s not always possible. Living apart is expensive, especially when you’re both trying to find extra money to hire divorce lawyers and plan for your separate future. Living together for at least a couple more months can provide a little critical additional financial security, especially since the economy and the housing market have been so poor in recent years.

Most judges will allow you to live separate and apart in the same house, but it’s tricky. There are some judges that don’t allow it, and most judges are a little extra critical of couples who have tried to live separate and apart in the same house during their period of separation. You’ll want to be sure you’re being extra careful about not “cohabitating” during your period of separation.

You should also know that it’s a bit of a risk. Not all judges approve of in-home separation. In most courts, there’s no way of knowing until the last possible minute which judge might be assigned to hear your uncontested divorce hearing, so it’s not like you can prepare ahead of time to make your judge happy. The risk you take is that you separate for the year and then the judge doesn’t accept your grounds. He could then dismiss your complaint, and you’d have to re-file and start your one year of separation all over again. Obviously, after already having lived separately for a year and spent the money to get into court and hire an attorney, that’s definitely not ideal. It’s a risk, but it’s a risk that a lot of people take.

When can I file for divorce?

You can’t file for a no fault divorce until you’ve been separated for the statutory period, so six months if you don’t have minor children and have a signed agreement, or one year otherwise. There’s no way to file earlier, unless you have fault based grounds.

Separation is the first step in the divorce process, so it’s not surprising that so many people have questions about it, what it means, and how to be sure you’re really living separately. It’s an important part of the divorce process, so it’s great that you’re already gathering the information you need to be sure that your divorce will move forward as quickly, efficiently and effectively as possible. For more information about separation, give our office a call at (757) 425-5200.

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