The Truth About In-Home Separation: It’s Tricky

You probably already know that, in order to be separated from your husband in Virginia, you have to live separate and apart. The actual period of separation depends on whether you have minor children. If you have minor children, you must live separate and apart for a period of one year. If you do not have minor children, you must live separate and apart for a period of six months. But what does it mean to live separate and apart? Can that be done in the same home?

Usually, yes. But you should remember that, when you go to your final divorce hearing, you’ll have to bring a corroborating witness to help you prove to the judge that you and your husband really have been living separate and apart for the statutory period. You and your witness will both be questioned under oath, and the penalties for perjury apply. Most judges accept that you can live in the same home and still be separated, but you’re going to have to prove that you’ve lived as separately as a couple who were actually physically separated for that time period.

So, what does that mean? I like to tell my clients that if it looks like a duck and quacks like a duck, it probably is a duck. Living separate and apart while still living together means that you have to meet a two part test: (1) you should not only be living “separately” within your home, but (2) you should also be behaving as though you are separate outside the home.

In the home, you should be behaving the same way you would be if you lived in separate places. You should have separate bedrooms, shop for your own food, prepare your own meals, eat separately, do your own laundry and other cleaning, and use separate bank accounts.

Outside of the home, you’re going to have to represent to close family and friends that you and your husband have separated. It may seem unpleasant, because no one likes to air their dirty laundry, but you’re not truly separated if you play the happy couple in public. It’s inappropriate to go to the kid’s soccer games together, to attend church together, or to outwardly celebrate anniversaries, birthdays, or other holidays. Stop wearing your wedding and engagement rings.

Think to yourself: how would I be behaving if we lived in separate apartments? How will I behave once we’re divorced? Just because you’re separated and living in the same home does not mean that the statute will be relaxed in your favor. In fact, you should be aware that, if you choose to separate and live in the same home, the judge will probably be looking much more closely at you and your witness when you appear in his courtroom.

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