“Can we be Legally Separated When we still Live Together?”
What Virginia's separation requirement for no-fault divorce really means...
In Virginia, there is no such thing as a "legal separation," a binding court order that defines the responsibilities, including financial arrangements and child custody, of a couple considering divorce but not yet divorced. However, the law in Virginia does require a period of separation, or living "separate and apart without any cohabitation and without interruption" before a divorce is granted on no-fault grounds (that is, on the grounds that you simply wish to dissolve your marriage).
After coming to the difficult decision to divorce, most people would prefer to get it over with as soon as possible. The standard period of separation in Virginia is one year, but if there are no minor children involved in the case, a couple may enter into a separation agreement and reduce the separation period to six months.
In some cases, couples intending to obtain a divorce can't afford to move into separate residences right away. In other cases, couples may have obligations to their children or to elderly parents that require a shared a living space.
In these cases, is there any way to initiate the period of separation?
There is, but it requires documentation and planning. If you plan to divorce and can't physically separate, you must prove that, despite your living situation, you are no longer functioning as a couple. Drafting a separation agreement is a good first step. A family law attorney can help you draft this document.
Contacting a lawyer at this early stage can also make the entire divorce process go more smoothly. Your attorney will help you understand what you should and should not do during the separation, including:
- Documentation: save all letters, receipts, and other documents that support your claim to living separate and apart.
When you begin your separation:
- Draft a separation agreement, or write up a statement of your intentions.
- Open separate bank accounts and keep all statements and other documents that show that your finances are separate.
- Behavior: A decree of divorce can be granted on the application of either party. That means even if your spouse has second thoughts about the divorce and you don't, or if your claim to no-fault grounds is challenged for any reason, you can still file for divorce, but your actions during the period of separation should clearly indicate your intentions.
After you are separated:
- Don't plan vacations or events together.
- Tell your family that you are no longer together.
- Don't send mixed signals about your affection or your intentions to your future ex- or to your family.
If you and your future ex- are successfully able to live "separate and apart" while sharing the same living space, chances are you will have no trouble settling your divorce through negotiation and can avoid the stress and expense of litigation. But again, proving that you have undergone the required period of separation in this case takes careful planning.
If you and your spouse live in Fredericksburg, Virginia or in the surrounding counties and intend to divorce, but for any reason are not able to live separately during the required period, please contact the law firm of Rinehart, Butler, Hodge & Moss. We can help you plan for a successful and painless no-fault divorce.
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If you'd like to schedule a consultation, call us at 540-659-2184 or fill out the form below:
Rinehart, Butler, Hodge & Moss, PLC
1259 Courthouse Road
Suite 105
Stafford, Virginia 22554
Phone: 540-659-2184
Fax: 540-659-8143
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