Living Separate and Apart – Requirements Under VA Divorce Law

Living Separate and Apart – Requirements Under VA Divorce Law

In Virginia, a couple seeking divorce must live separate and apart for one year when they have minor children. With no kids, 6 months is the rule. . . . but only if that couple also has a properly drafted and signed Property Settlement Agreement (PSA).

The required period of separation was intended, by the lawmakers, to mean that the husband and wife would actually live in separate residences. However, they did not make that clear in the law. As a result, many Virginia divorcing couples spend all of a portion of the 1 year/6 month period of separation while living under the same roof. 

QUESTION: What is required of a couple who wish to meet all or part of the 1 year/6 month period of separation while under the same roof?

ANSWER: There is no absolute, clear-cut method of assuring the Court will accept your in-home separation as meeting the (unclear) standards required by the law. But, here are 5 tips that will help you navigate this soupy area of Virginia divorce law:

  1. STAY AWAY FROM THE FOLLOWING ACTIVITIES: Sexual relations, sharing food/meals, sharing a bedroom, doing each other’s laundry.
  2. DON’T GO OUT TOGETHER: Don’t present yourself to a world as a couple. Let people know that you are living separate lives. Don’t show up at parties, wedding and family functions together.
  3. DITCH THE RING: Don’t wear your wedding or engagement rings.
  4. DIVIDE YOUR FINANCES: As much as possible, live separate financial lives.
  5. WRITE A LETTER OF INTENT: Put your intent to permanently live separate and apart from your spouse in a written and signed letter to your spouse.
  6. HAVE A WITNESS: Whether you get divorced in the courthouse or do it all by affidavit, you will need a witness who can swear that the two of you have indeed been living separate and apart.

QUESTION: Why isn’t this confusing law cleaned up?

ANSWER: Because there is a lot of money to be made by divorce lawyers when laws are confusing. Moreover, Virginia divorce law is interpreted such that property (e.g., assets, all things of value) and debts acquired after separation are separate property. Judges have no power to divide and distribute separate assets and debts in a divorce. The murkiness of whether parties are actually living separate lives, when they are under the same roof, is great kindling for the fire of litigation.

Fact Pattern: The husband and wife’s divorce lawyers can see things very differently when, for example, a husband receives a bonus just after he moved into the basement. The wife’s attorney might assert that the separate sleeping arrangements were due only to the husband’s snoring and, further, that his client and the husband were intimate on a regular basis. The husband’s divorce attorney could then assert that the husband had an intent to permanently separate from his wife and that there had been no hanky-panky between them for years. We all know that one never knows what goes on behind the closed doors of a family’s home. Believe me, it’s no different for divorce judges. But, all the while, the attorneys are making $350-800 bucks an hour.

Do you see the money that could be spent on litigation with Was it, perhaps, his wife’s snoring that sent him underground and not an intent to permanently live “separate and apart?” Since it is quite clear that parties are “living separate and apart” when they actually live in separate homes; but much murkier to determine if they are actually “living separate and apart” when they are under the same roof, this has become a great game in the Virginia Courts when it comes to classifying property and debts a marital (judges can divide and distribute) or separate (judge’s have no rights to divide and distribute)

QUESTION: Why does Virginia require a 1 year/6 month period of separation before a person is permitted to file for divorce?

ANSWER: Virginia lawmakers believe that they should have a role in the preservation of the traditional nuclear family. To this end, they require a period of activity and reflection so that parents and their children can see what it feels like to be divorced before they actually pull the plug on their marriage.

With the one year period of living separate and apart, families experience all of the holidays, birthdays, seasons and the rhythms of life that tend to bring out strong emotions.   That period of separation also gives parents a good taste of how much communication, cooperative planning and joint decision-making is necessary when families that are split into two separate homes.