Same Home Separation

The questions whether and how long you’ll need to be separated to get a divorce in Virginia are well settled, easy, and very, very clear.
In case you’re new to the game, in Virginia you have to be separated for a full year whether you’re using fault or no fault grounds (with the exception of adultery, which technically qualifies you for an immediate divorce), unless you (1) don’t have minor children and (2) you have a signed separation agreement, in which case you can get divorced after just six months’ of separation.

So, in almost every case, whether you’re using adultery, sodomy, buggery, cruelty, apprehension of bodily hurt, desertion, abandonment, felony conviction, or even no fault grounds (provided that you don’t meet the two criteria set forth above), you’ll have to be separated for at least a year before your divorce is finalized.

As a practical matter, you’ll likely be separated longer, because it’s unlikely that your contested or uncontested divorce hearing, or your divorce affidavit, will be reviewed and entered on the date that you’ve reached that one year mark.

A year isn’t forever, by any stretch of the imagination, but it is a fair bit of time. And there’s a weird in between period, usually before a separation agreement or a court hearing starts to weed through the remaining issues, where no one really knows what to do. Stay or go?

Can we stay separated in the same home?

In home separation, or separation under the same roof, whatever you want to call it, happens a LOT.

As a practical matter, of course, it makes sense. Very few families can afford to maintain two separate residences, especially before things like child and spousal support are formally determined. I’ve said before that it’s often difficult to maintain the same standard of living post-divorce as existed prior to the divorce, and this is the prime reason why. Two separate residences – rent or mortgage – plus two separate sets of utilities takes a toll. It costs a pretty penny, even when you’re only maintaining one home!

The short answer is that yes, generally speaking, you can live separate in the same home. To be separated, you have to (1) form the intent to end the marriage, and then (2) stop cohabitating. Cohabitating is an important component; you have to live separately, like you would if you lived in completely separate spaces, and not at all like you lived when you were a happily married, not separated, husband and wife.

It’s about the way you behave inside the home and outside of the home. Though it’s uncomfortable, you shouldn’t be confusing to friends, family members, and neighbors. You shouldn’t be cooking and cleaning for each other. You shouldn’t be sleeping together – in any sense of the word. You should be holding yourselves out in the community as a separated couple.

You should, in short, be doing all the same things you’d be doing if you lived separately, regardless of whether you actually do live separately.

Are there any disadvantages to living separate in the same home?

Well, yeah. The first disadvantage is, of course, that you still live with him.

But, beyond that, there are other potential disadvantages, too. There is always the risk that, if you provide your testimony, the judge will find your evidence insufficient to grant your divorce. That is probably not a huge risk in most cases; in a divorce by affidavit, we don’t get into a ton of detail about the individual circumstances inside the home. I’ve had it come up once or twice in a litigated divorce, but I don’t think I’ve ever had a divorce complaint rejected because the circumstances in home were unsatisfactory to meet the standards required by law. Still, it could happen, especially if you’re careless.

You have to have grounds to get divorced, and a component of ALL of the grounds in Virginia (except adultery, and you should not that even then you probably will have to separate for a year) includes the period of separation.

The judge isn’t being nitpicky; he’s following the law, and the law doesn’t allow a divorce where the period of separation has not been met. So, to a greater or lesser degree, the judge will have to ascertain that the statutory minimums have been met.

In other courts, you may also find that you have to have an in person uncontested divorce hearing if you lived separate under the same roof for any portion of your separation period. You may be able to avoid that requirement by filing somewhere else – Norfolk, for example, doesn’t mind if you file your uncontested divorce there, no matter where you lived as husband and wife during the marriage. But it is something you should still be aware of, so you’re not taken by surprise later.

In home separation is often an option, but it’s one that you should go into knowing the advantages (usually, saving money!) and disadvantages (continuing to live with him, potential in-person uncontested divorce hearing, risk that your evidence won’t be accepted by the judge). Like anything else, it’s part of a comprehensive strategy, and, the more you know, the better your choices will be.

For more information, or to discuss your separation case with a Virginia divorce attorney, give our office a call at 757-425-5200.

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