Is it okay if we separate in the same home?

In Virginia, one of the requirements to qualify for a no-fault divorce is having lived separate and apart from your husband for a period of one year, if you have minor children, or six months, if you don’t have minor children. Living separate and apart doesn’t necessarily mean that you have to live in separate places. In fact, these days, more and more couples choose to live together for part, if not all, of their period of separation.

It’s easy to understand the appeal. Living in two different places is awfully expensive, and sometimes it takes a little while to work out an appropriate living arrangement. If your divorce is uncontested and the relationship between you and your husband is relatively peaceful, it can be a good alternative.

Still, at the end of your year of separation, you’ll have to go to the judge and swear under oath (under penalty of perjury) that you lived separate and apart, without cohabitation and without interruption, for the entire year. But what does that mean?

“Cohabitation” deals mostly with whether you’re holding yourself out as husband and wife, both when you’re at home alone and when you’re out in public. Most people assume that cohabitation is mostly about sex, but that’s really only part of the equation. We’re talking more about whether you’re behaving like you’re still married. Are you doing his dishes and laundry? Are you celebrating anniversaries and holidays together? Do you ride together and sit together at your kid’s school events? Do you still attend church together? Do your family and friends know that you’ve separated? These kinds of things will give you a little insight into what the judge is looking for.

Ideally, after your year of separation, you can honestly say that you’ve lived exactly the way you would have if you lived in separate spaces. You cooked and cleaned for yourself, shopped for yourself, and drove yourself to all the events you attended. Though you may have come together at various times for the sake of the children, you left no doubt in anyone’s mind as to the status of your marriage.

What happens if you don’t do these things? Well, living separate in the same home is definitely risky. It’s so easy to fall into old patterns of behavior, and the judge definitely won’t relax the standards for you. In fact, some judges are against allowing in-home separations at all. The statute doesn’t specifically require that you live in separate physical spaces, so many judges believe that it’s possible, but definitely not all of them. If you haven’t satisfied the requirement of living separate, and you aren’t able to swear that in front of the judge, you’ll have to start your year of separation all over again.

The judge will ask you whether you’ve lived separate and apart at your hearing (but probably not in so much detail), so it’s important that you make changes to the way you’re living now if you plan to live together during the upcoming year.

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