We have a lot of resources for Virginia women facing separation, divorce, and custody cases, but one of the most common questions we get relates to how to even start the process.
“I want a separation from my husband,” women tell us. “How do I start? When am I separated? What do I do to make sure my separation is legal?”
Or, on the other side of the equation, we get questions like, “He says we’re separated, but how do I know? Are we actually separated? What if I don’t want to be?”
These are great questions, and ones that come up in almost every case. They’re also questions that are a little difficult to answer because, frankly, what does and does not constitute a legal separation in Virginia is not always that easy to judge.
When are you legally separated in Virginia?
Legal separation is not a status that you have to go to court and file to receive. In Virginia, you’re legally separated when one of the parties forms the intention to end the marriage and then stops cohabitating with the other spouse.
Both spouses don’t have to be in agreement for there to be a separation, but usually both have knowledge of the separation because one spouse makes a decision and then acts on it. From the moment that the separation period begins, the two parties can’t cohabit, which is basically just a fancy legal word that we use to describe living together as husband and wife.
When you stop living as husband and wife, it doesn’t necessarily mean that you move to totally separate physical spaces, though that is certainly a possibility. Separation in the same house is something that many couples attempt, at least initially, in an attempt to save money. Of course, though, you probably already know that, eventually, you will live apart—and, as far as your divorce is concerned, the sooner the better.
Living separately under the same roof
Whether or not you live separately under the same roof, you should ask yourself, “Would I be doing ______ if we lived in completely separate physical spaces?” If the answer is “yes,” it’s probably okay. If not, you may be blurring the line—and making proving that you were separated all that much more difficult at the end of the year.
If you’re actually living separate and apart, you’re living like unmarried people. That means you don’t wear wedding rings, you don’t sleep in the same bed, and you don’t cook and clean up after each other. You don’t put on a happy face in public when things are bad behind the scenes; you represent to family and friends that the two of you are separated and possibly moving towards divorce.
Can you live separate and apart? Most of the time, yes. Is it more complicated? Most of the time, yes. Is it necessary? That all depends on you.
In many courts, even though divorce is allowed to be granted by affidavit (meaning that you just fill out the necessary forms without having to appear formally in court), if you’ve lived separated under the same roof for any period of time, you have to have a hearing. (Virginia Beach, for example, is this way.)
For more guidelines about living separate under the same roof, click here.
What’s the big deal with separation, anyway?
It probably seems silly to you that you have to jump through all these hoops to get divorced. Who cares if you’re really separated anyway? Isn’t “separated” good enough?
The thing is, you have to have grounds to get a divorce. In Virginia, we have fault based grounds and no fault grounds. These days, most people get divorced using no fault grounds for a couple of reasons, but mostly because no fault divorces tend to be less expensive and less complicated. No fault grounds are based specifically on a period of separation. In Virginia, you must be separated for one year (or six months if you have no minor children AND you have a signed separation agreement) in order to get a divorce.
Separation is important because, without it, you have no grounds. Without grounds, no judge has the authority to grant your divorce. So you can be sure that, whoever you have as a judge, he or she will be very concerned with establishing that you and your husband were, in fact, separated for the statutory period. What if you aren’t? Your divorce would be dismissed, and you’d have to start over. Definitely not ideal.
We don’t really call it a legal separation, but if you’ve done these things, you’re separated. No need to worry.
How do I start? Proving that you’re separated
To start your period of separation, you must form the intent to separate. Then, stop cohabitating. At this point, you’d want to establish a separate bedroom, and stop cooking and cleaning for your husband. Stop behaving, both inside and outside of the home, like a married couple. Document it.
Although it’s not strictly necessary, you may want to talk to your husband about your decision and begin to make a plan for how to move your divorce forward, if that’s what you want, or take steps to begin to save your marriage (like, maybe, setting an appointment with a marriage counselor), if that’s your goal.
What if I don’t want to be separated?
Technically, you don’t have to be on the same page to be separated. You don’t even have to be on the same page to get divorced. If you want, you can be difficult—drag things out and prolong them—but, in most cases, that’s really not ideal because it drives up legal expenses for both of you.
If you don’t want to be separated, there’s not much you can do about it. You can try to defeat his argument that you’re separated by continuing to do things like you would when you were still happily married, but, especially if he moves out, this may prove difficult. It’s probably best to talk to an attorney about your rights in Virginia and try to make a plan for how to move forward. Resisting won’t yield better results and, in fact, can technically make things much harder in the long run. Don’t waste financial resources fighting if you can help it.
Do I need to hire an attorney if I’m separated?
Not necessarily! Really, it all depends on what you want to do at this point. Are you ready to begin moving towards divorce? Ready to start preparing a separation agreement? Thinking about filing for fault based divorce? If so, it might be time to think about an attorney.
But there’s technically no reason why you need one, unless you’re starting to think about moving forward—or just want to get more information about what your rights are in Virginia. It’s something worth thinking about for sure, but, if you’re not ready, there’s really no pressure to take any steps at this point.
If I don’t need to hire an attorney yet, what should my first steps be after separation?
You will probably want to start gathering information. A great place to start is by attending one of our Second Saturday divorce seminars. They’re a great source of information because they’re up to date, Virginia specific, and taught by one of our licensed and experienced Virginia divorce and custody attorneys. Each seminar is an hour and a half long and allows women the opportunity to ask questions to the attorney directly. It’s a good way to learn about how divorce works in Virginia, what your rights are, and what to expect from the process.
For more information or to register to attend, click here.
Otherwise, if you need more information or would like to schedule an appointment with one of our attorneys, give our office a call at (757) 425-5200. Good luck!