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

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.)

Lots of women say to me that they want to try a separation, but they’re too afraid that it will mean that they’ve given up on their marriages. If their husbands suggest it, they worry that their husbands are ready to totally throw in the towel. It makes them panic, and they’re worried about the overall implications.

Well, I’m not going to sugar coat it to start off. There’s no question that a separation means that your marriage is on shaky grounds. But, that being said, I’ve seen plenty of marriages where they separate and eventually come back stronger than ever. It doesn’t always happen, but it happens fairly frequently in my practice. It probably happens even more often for people who are working with marriage counselors instead of attorneys. (Because, if you think about it, I probably see the people who are furthest down the road to separation, and the most seriously thinking about divorce as a possibility. I bet there’s a whole host of people who start out with marriage counseling or a trial separation without even talking to an attorney first.)

Of course, regardless of whether you ultimately hope to save or end your marriage, you may be worried about the long term outcome. You probably want to know what your legal rights are. Where can you even start to get that kind of information? Sure, you can do a Google search, but how do you know that the information you’re finding online is up to date, Virginia specific, and written by an attorney? How do you know that the information you’re getting is right? After all, you don’t just want what you’re reading to make you feel better (though ideally it certainly would); you want it to tell you the truth, so that you can begin to plan your future. You’re making choices right now—big ones. You want to be sure that you’re making them with all the information at your disposal.

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.

I want to know more about my legal rights. Where should I start? Do I need to talk to an attorney?

You don’t have to talk to an attorney when you separate, but some women choose to. There’s a lot at stake in a divorce; in fact, it’s the biggest financial transaction in most adult women’s lives. (Think about it: everything is divided in divorce! It’s your house, your car, your retirement, and your kids, all divided at once!)
If you’re wondering about your rights, now is a good time to ask. It’s not like opening Pandora’s Box. It’s not like you’re going to find out something terrible that you can’t take back. In fact, for a lot of people, finding out what is involved in a divorce (and how things like the house and health insurance will be handled) drives people back together. It’s not like an “it’s cheaper to keep her” kind of thing so much as it’s a frank and honest assessment of the costs—which makes people want to try a little bit harder to make it work.
If you just want to get a little bit of information to start, consider attending one of our monthly divorce seminars. Each seminar is taught by a licensed and experienced Virginia divorce attorney, so you can be sure that you’re getting up to date, Virginia specific information straight from an attorney who is in a position to know. You’ll learn about how property is divided, what it means to be separated, what the different grounds of divorce are, and even how to actually get divorced (spoiler alert: there are a lot of choices!), plus you’ll be able to ask your questions to the attorney in the seminar.
We teach our monthly divorce seminars three times a month—twice in Virginia Beach, on the Second Saturday and Third Tuesday of the month, and once in Newport News, on the Second Saturday of the month. The Second Saturday seminars are in the morning, and run from 8:30am-10:00am. Our Virginia Beach seminar is at the Friends Meeting House at 1537 Laskin Road. Our Newport News seminar is at the Hilton Garden Inn, at 180 Regal Way, off of Victory Boulevard and next to Regal Cinemas. Our Third Tuesday seminar is in the evening (for all of those who can’t make early morning meetings) from 6:30pm until 8:00pm. Each seminar features all sorts of information you need to know about divorce, and also includes a brief speech from a local area therapist. They’re super comprehensive, and a great way to get started learning about the Virginia divorce process. (In fact, after you attend, you’ll know more than your husband—unless he’s a divorce attorney, too—and 99% of people in Virginia!) For more information or to find out about our next seminar date, click here.
Something specific keeping you up at night? Absolutely positively need a specific answer now? You may also wish to talk to an attorney one on one, and that’s fine too. If you want to talk to an attorney, we’re definitely here to help. Feel free to give our office a call at (757) 703-4160, and we can help you schedule a confidential one hour appointment with one of our divorce and custody attorneys. Want to know more about what to expect? You’re not alone. It’s scary to walk into a divorce attorney’s office. Find out more about what to expect in an initial consultation with us by clicking here.

If we decide we want to reconcile after our separation, what do we do?

If you and your husband decide that you want to reconcile, that’s great! You don’t really need to do anything—just resume cohabitation. You can move back in together, if you were living in different places, and start living together again as husband and wife. Wear your wedding rings, sleep in the same room, cook and clean and grocery shop for each other—everything is fair game. (Obviously!)
But what if you already took some legal steps to protect yourself while you were separated? Lots of women, in an effort to protect themselves, negotiate a separation agreement or a marital agreement while they’re separated, and that may be something you wish to do, too. (Or, alternatively, something you’ve already done.)
A marital agreement is a legal contract between a husband and wife that basically sets forth the terms needed to keep the marriage going. Sometimes, parties include things like date nights and marriage counseling. In addition, they also usually include the specific provisions that will affect them if they decide, later on, to move forward with a divorce. This way, both parties are fully aware of how the property will be divided and custody split in the event of a later separation and divorce.
Similarly, a separation agreement is a legal contract between a husband and wife as they begin to prepare for divorce. (Though they can certainly reconcile even after a separation agreement is signed—more on that in a minute.)
If you’ve already negotiated a marital agreement or a separation agreement, look at the terms of that agreement and see what is specifically stipulated in the event of reconciliation. Will your agreement return in full force and effect if you reconcile later? Those are probably ideal terms, because both parties know, ahead of time, what happens later on if things don’t seem to be working out. Read your agreement for more information about the specific terms that apply in your case.
You may wish to work with a marriage counselor together, or a therapist one on one, too. If not, that’s fine; it’s totally up to you. But I do find that the couples who have the most successful reconciliations work with a therapist in some form or fashion.
But, really, from this point, it’s entirely up to you!

If we want to divorce, what do we do?

If your separation isn’t going so well and you decide you’re ready to move forward with a divorce, it’s definitely time to start mulling over your options. You don’t have to hire an attorney (though many people do choose to), but you’re going to want to start giving your options some serious consideration.

Hiring an attorney

Of course, the traditional route involves hiring an attorney—which, obviously, I definitely recommend. (If your divorce is going to be contested, you really don’t have much choice; you’ll definitely need an attorney. Wondering if it’s contested? CLICK HERE.) An attorney will represent your interests at all times, be an advocate for you, and help protect you against any problems that might mean you would have to go back to court again in the future.
An attorney can help you whether you plan to draft a separation agreement or move forward with a full fledged contested divorce, making sure you end up with the best result possible.

Using a mediator

Some people also choose to work with a mediator (usually in an effort to save money) on their divorces.
For more information about mediation, including its advantages and disadvantages, click here.

If you’re considering a separation, you’re not alone—and it doesn’t have to be a pit stop on the way to a full fledged divorce. Make the decisions you need to make based on your unique situation, and pave the way for the best new start possible.

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.