Making a plan before you divorce: living separate in the same house

Some of the most terrifying decisions you’ll have to make in your divorce are decisions you’ll make before you even decide whether to separate from your husband. This is the time you’ll be thinking about where you’ll go, what you’ll do, and how you’ll help your children adjust. You’re mourning the relationship, the hopes you had for your future together, and trying to envision a different future for yourself than the one you had gotten used to thinking of during your marriage. You’re trying to think of how you’ll tell your friends, family, and co-workers. It’s embarrassing, it’s uncomfortable, and it’s hard. You’ve probably had your share of sleepless nights where you just worry about all the unknown answers to these questions.

Make a plan before you separate

These are some of the first (and most difficult) hurdles you’ll have to face. Ideally, you will have already begun thinking about these things before you actually separate from your husband. It’s much more difficult to separate first and start thinking about these things later. In the best case scenario, you should already have come up with a plan for where you’re going to go, how you’re going to earn money, and how to minimize the impact of all these changes on your children. It’s not easy, but it’s definitely best if you’ve planned these things ahead of time.

These days, lots of women choose to live with their husbands even after they’re separated. It’s not ideal, but because of finances, it’s often necessary. If you find yourself in a position where you don’t anticipate being able to afford another place to live, you may want to consider living separate and apart in the same house.

Separating and living in the same house

If you choose to live separately in the same house, for whatever reason, you’ll need to make sure you have a plan to really stay as separate from each other as possible. The law requires that you live separately without “cohabitation,” which is really just a fancy word that means that you should be living like roommates, not husband and wife. When you cohabitate, you hold yourselves out as a married couple. Nothing that you do should allow other people around you to think of you as a happily married couple.

It can seem awkward to “air your dirty laundry” in public this way, but remember that, at the end of your divorce, you (and a corroborating witness) will have to testify in front of a judge that you’ve lived separate and apart for the whole time period. Your corroborating witness will have to agree with you. The judge may even ask more pressing questions, like who did the laundry, grocery shopping, cooking and cleaning. Did you buy anniversary presents? Did you continue to go to church together? You’re definitely safest if you just let everyone know that you’re separated, and then start to live the way you would if you lived in completely separate physical spaces.

What if I can’t prove that we were separated in the same house?

If the judge isn’t satisfied by the evidence you provide, he can deny your divorce complaint. That doesn’t mean you can’t get divorced ever, but it does mean that you’ll have to start your separation period all over again. That adds an entire extra year (or six months if you have a signed agreement and no minor children) on to the time it takes to finish the process. Definitely not ideal.
What should we be doing to help make sure the judge finds that we’ve been separated?

You and your husband should be living the same way as you would if you lived in completely different places. You should do your own cooking, cleaning, shopping, and laundry. You should take off your wedding rings, and tactfully tell friends, family, co-workers, neighbors, and other acquaintances that you have separated.

You should live and sleep in separate places. If you stay in the master bedroom, he should sleep somewhere else—and he should take his clothes and other day-to-day items with him.

You shouldn’t have sex. If you do have sex, it probably isn’t a deal breaker. The courts have heard cases like this before and have ruled that merely having sex doesn’t mean that you’re not separated. (After all, there are plenty of married people who don’t have sex and plenty of unmarried people who do, so sex alone is not really an indicator of whether you’re cohabitating, or living together like a married couple.) Still, it’s probably not a good idea.

You shouldn’t exchange gifts, celebrate birthdays, holidays, or anniversaries, or attend religious services together. Unless you absolutely have to do something together (like attend a parent/teacher conference), you should do it separately.

It’s definitely possible to live separate and apart in the same house. Is it ideal? Probably not, because you’ll want to start fresh and build a life for yourself that doesn’t include your soon-to-be ex. Not only that, but there’s probably some residual tension between the two of you, too, so it won’t be exactly comfortable to continue to live together. You’ll probably want to move out on your own as soon as possible, but your expenses will be pretty high in the first few months after you separate (particularly if you intend to hire an attorney to help negotiate the best result possible), so if living together is necessary, don’t sweat it.

For more information about living separately in the same house, request a free copy of our book, “What Every Virginia Woman Should Know About Divorce” by clicking here, or schedule an appointment with one of our licensed and experienced Virginia divorce and custody attorneys by calling (757) 425-5200.

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