When are you legally separated in Virginia?

Legal separation in Virginia is simple to define: when one person forms the intent to end the marriage, the parties become legally separated. You don’t have to go down to the courthouse or file any paperwork. It’s that way in some states, but in Virginia it’s much easier.

Of course, legal separation comes with its own difficulties, especially if one party forms the intent to leave the marriage without letting the other party know that the marriage is over. Still, you’ll have to remember that, in order to prove to the court that you’ve been separated for the statutory period (which is one year if you have minor children and six months if you don’t), you’ll have to testify under oath that you have actually been separated.

So, legal separation in Virginia really has two parts: (1) forming the intent to leave the marriage, and (2) living separate and apart. The intent to separate must also be coupled with the actual act of separating. Just thinking that you want to be separated and end the marriage isn’t enough. That starts the period of separation, but that’s not going to be enough to carry you through the whole year. You’ll also have to stop cohabitating.

What does it mean to cohabitate? Cohabitation means living together as husband and wife. When you stop living together as husband and wife, you’ll have to stop behaving like you’re married—both inside the home and outside of it. That means you’ll have to stop sleeping in the same bedroom, cooking each other’s meals, cleaning up after each other, doing each other’s laundry, and, of course, having sex. You’ll also have to let your friends, family, and neighbors know that you’re separated. You shouldn’t be going to church together and playing “happy family,” just because it’s easier to avoid explanations.

When you go for your final divorce hearing, you’ll have to testify to the court that you have lived separate and apart. The judge will want to know that you’ve done these things, because he can’t grant your divorce if you haven’t!

It’s definitely a little more difficult if you’re separated in the same house, because it’s easier to fall into old patterns. When you’ve made enough dinner for the whole family and he comes home, you can’t very well tell your him in front of the children that he’ll have to prepare something for himself. It seems easy enough: live in your home the same way you would if you lived in completely separate physical spaces. But it’s more difficult than that, and you should also be aware that the judge will probably look at your case with a little more suspicion than if you indicated that you were living in different homes.

For more information on what you should be doing if you’re trying to live separate in the same home, request a free copy of our book, “What Every Virginia Woman Should Know About Divorce.” It will give you some very helpful pointers!

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