As far as divorce is concerned, separation is more or less the tip of the iceberg. You have to separate in order to get a divorce in Virginia, but not every separation ultimately leads to divorce.
For many couples, separating – or just taking a hard time out – is a tool, along with marriage counseling, that allows them to help get their relationship back on track.
A separation is not necessarily Pandora’s Box; just because you gather a little more information about legal separation, divorce, or your rights and entitlements under Virginia law doesn’t mean your marriage is doomed to fail. You’re right to ask questions, to want to understand, and to feel as prepared as possible, no matter what the future holds.
That’s why we’re here; to answer questions without judgment, to help you understand without pushing you in any direction. Ending a marriage is a big decision, and it’s one that you shouldn’t make without being truly convinced that it’s what’s best for you and your children.
Separation is the first step and, though it’s entirely possible that you could still reconcile and save your marriage, you should understand what it means and exactly what’s involved.
Am I legally separated?
In Virginia, like in many states, you have to be separated for a period of time before you can get a divorce. Before you can finalize your divorce, you will need to be able to prove your period of separation – so knowing when and if you are separated is important.
“Legal separation” in Virginia is a status that occurs when two things happen: (1) at least one of you forms the intent to end the marriage, and (2) you stop cohabitating.
Legal separation does not require you to go to the courthouse, fill out any forms, sign anything, or hire a lawyer. It just means that these two events have taken place.
What if my spouse doesn’t agree that we’ve “formed an intent to end the marriage”?
Only one of you has to form the intent to end the marriage (combined with stopping cohabitation), so you don’t really have to be in agreement on this point. The main thing is that the two of these points coincide at some period in time, regardless of whether the other party actually agrees that the end result should be or will be divorce.
Does that mean there can be disagreements about whether two parties are separated? Well, yeah. Because nothing is signed, and there’s no way to go back in time and specifically affirm that a date of separation happened on a specific date, there is sometimes some back and forth over when that event took place. In some cases, this is important because of how and when assets are valued and divided, especially retirement.
In most cases, we’re ultimately able to reach an agreement on this point. Obviously, that date still has to be a truthful one – you can’t just agree to backdate your date of separation to a year earlier so that you can get divorced sooner; that’s perjury. Any testimony that you offer, whether in your pleadings, affidavits, or testimony in court is offered under oath and, therefore, has to be truthful. (Besides perjuring yourself, if you agreed to an earlier date, you might miss out on assets, or an award of spousal support, that is reflective of the actual term of your marriage.) As long as you were separated on the date in question, it usually doesn’t matter too much whether it took one or the other of you a few more months to be in agreement – and then you could use a date at any point along that continuum that you agreed to use.
What is cohabitation?
So, combined with forming the intent to end the marriage, you’ll also have to stop cohabitating.
What does that mean, anyway? Cohabitation is a fancy legal word we use to describe living together as husband and wife. You can cohabitate whether or not you’re married, but the point is how you behave – inside of and outside of the home, including the impression you give others about the status of your relationship. If people would assume you were married, based on your behavior, you’re cohabitating.
To get a divorce, you have to stop cohabitating. That means that, both inside of and outside of the home, you’ll have to behave differently than you did when you were a happily married couple.
In most cases, you can live separate under the same roof – though that may require you to have a hearing on your uncontested divorce later on down the line, depending on your locality. But, regardless of whether you live in the same home or in different homes, you should be behaving the way you would if you were legal strangers who lived completely separately.
Like what? Well, here are a couple examples:
To be considered legally separated:
- Don’t wear wedding rings.
- Don’t cook or clean up after each other.
- Don’t grocery shop for each other.
- Sleep in separate bedrooms.
- Don’t have sex.
- Don’t exchange gifts or celebrate anniversaries or birthdays.
But don’t forget to consider the way you’re behaving OUTSIDE the home as well. Though it’s uncomfortable to air your dirty laundry in public, from the perspective of separation, it’s important to make sure that friends and family members know you to be separated. At the end of the process, you’ll need a witness who can testify that you’ve been separated for the statutory period anyway, so better to go ahead and clue them in now.
That means that you shouldn’t be going to church together, attending parties or weddings together, or doing anything to give the impression that you’re still together and happy. This is one of the harder parts for most people, but – still – it’s necessary.
How long do we have to be separated?
With the exception of adultery cases, where you technically qualify for an immediate divorce (although, before you get too excited, read the article included here about how “immediate” an immediate divorce actually is!), you have to be separated for a period of time in Virginia.
In most cases, you have to be separated for a year. That includes ANY case where there are minor children involved (whether adopted or born to the parties), where the parties cannot agree on how the assets and liabilities will be divided, or where fault based grounds (including cruelty, apprehension of bodily hurt, desertion, abandonment, or felony conviction) are alleged.
Six month separation in Virginia divorce
In certain circumstances, you can get divorced more quickly, after just six months separation. To qualify, you’ll need to meet two criteria: (1) there were no minor children born or adopted by you and your husband, and (2) you were able to divide all of your assets and liabilities in a signed separation agreement.
You should definitely take some time and familiarize yourself with the various grounds for divorce, and how they work in Virginia.
I’m not ready to do anything. Is that okay?
Of course. Some people stay married but separated for years before they move forward with a divorce.
That doesn’t mean that NOTHING happens!
If you have children in common, custody, visitation, and child support can be determined independently of a divorce. So, even if you don’t necessarily want to move forward with the divorce today (or if you’re hoping that this is just a brief time out before an eventual reconciliation) but you need help managing custody and visitation, you can do that.
A divorce action is filed in circuit court; custody on its own that isn’t part of a larger divorce action is filed in juvenile court. And that can happen whether you guys are married, separated, or divorced, as an initial determination or as a modification later on down the line after a material change in circumstances has occurred.
You can also file a separate action for spousal support, independent of a divorce action. This is called “separate maintenance” and it’s something that’s also filed in the juvenile court system.
Keep in mind, though, that if a divorce is subsequently filed, the juvenile court will be divested of jurisdiction, and the remainder of your case will be in circuit court (unless and until you are able to negotiate an agreement).
Are we separated if we're still trying to save the marriage?
Ending your marriage – or even thinking about it – is huge. Most women do absolutely everything they can to save their marriage before they even start to think about divorce.
For many women, one of the first things they try is working through some marriage counseling. Technically, if you haven’t “formed the intent to end the marriage” – which you haven’t, if you’re still hoping for a reconciliation – you’re not legally separated.
Of course, the fact that you’re technically not legally separated if you’re still going through the motions by attending marriage counseling doesn’t mean that you shouldn’t attempt marriage counseling! By all means, do everything you can to save your marriage. At the end of the day, no matter how difficult the decision to divorce may be, you’ll feel a lot better about it if you know you’ve done everything you could to try to save it first.
Make sure, though, that you know your rights, and that, by reconciling, you aren’t giving up anything that you might otherwise be entitled to – or legally forgiving him for anything that he may have done. It’s a good idea to work with an attorney, or to at least get some advice (whether in a consultation, by getting a free copy of our divorce book, or attending our monthly divorce seminar) about what your rights and entitlements might be under Virginia law. A good example? If he commits adultery and you sleep with him after you find out about the affair, you legally forgive his adultery.
Just because you want to work on the marriage, though, may not mean that you’re willing to move forward without an agreement in place about how you expect things to go. For some women, that means considering a marital agreement.
A Marital Agreement is an agreement that sets forth both (1) under what conditions you’d be willing to resume the marital relationship (say, a mutual agreement to attend marriagecounseling, regular date nights, etc), and (2) how your assets and liabilities would be divided in the event that you do ultimately decide to end your marriage.
Entering into a marital agreement, though, doesn’t mean you’re separated – in fact, it essentially means the opposite. Though it takes a lot of guesswork out of the separation agreement for you later on, you’ll still have to formally recognize a date of separation later.
When are you separated? The analysis is the same here: when both (1) one of you has formed an intent to end the marriage, and (2) you stop cohabitating. That’s really not the case if you’re still hoping to save the marriage but, again, that shouldn’t stop you from doing everything you can to try.
If I'm considering separation, or I'm already legally separated, what advice would you give me?
Divorce is never a decision that is undertaken lightly, and most women feel plagued with guilt. Did I try hard enough? Should I just stick it out? What about the kids?
If you’re considering a separation, there are a lot of resources out there to help you make the best decision possible.
Don’t be afraid to gather information. The more informed you are, the better your decisions will be. Learning more about the divorce process in Virginia, what you can expect, and what difference it will make for your financial bottom line doesn’t mean that you can’t decide to save your marriage later on, if that’s the right decision for you.
There are a lot of resources available on this site to help you figure out what your next steps should be. Whether you’re still considering saving your marriage, or whether you’re ready to separate, it’s a good time to start asking questions, gathering information, and thinking through your next steps. If you’re worried about how you’ll support yourself, it’s good to ask questions about custody and visitation (and how different custodial arrangements result in different amounts of child support being paid) and spousal support. Consider any alternatives, and ask questions about the options available to you. Are you considering getting a new job, or switching jobs? What impact will that have? Will you have to move? Where? How far? Will the court even let you do what you’re planning? It’s a good idea to ask questions now, before you get too far down the line. Plan carefully, and with full knowledge of what your rights and entitlements are. You’ll sleep better at night, but you’ll also set yourself up for the best result and happiest ever after possible.
It’s scary, but it’s not going to be less scary if you don’t have the information available to you to plan your next steps. Schedule a consultation, and begin to formulate a plan. Whether you save your marriage or end it, we’ll never push you in a particular direction. Our only goal is to ensure that you have the information you need to make the decisions to carry you confidently into the future.