Living Separate and Apart – Requirements Under Virginia Divorce Law

Living Separate and Apart – Requirements Under Virginia Divorce Law

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In a Virginia divorce, there must always be grounds for divorce. In a "no-fault" divorce, those grounds are based on a period of separation.

With minor children, couple seeking divorce must live separate and apart for one year. With no kids, 6 months is the rule. . . . but only if that couple also has a properly drafted and signed Marital Settlement Agreement and MSA.

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. 

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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 period of in-home separation. Over the years, though, some strong guidelines have energed in this soupy area of Virginia divorce law.

7 tips for living separate and apart:

  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 the 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 the letter to your spouse.

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 most property (money, real estate, retirement, etc.) and much of the 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.

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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.

Also Read: What is a Property Settlement Agreement (PSA) in a Virginia Divorce?


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 reflection so that parties can see what it feels like to be divorced... before they actually pull the plug on their marriage.

The thinking is that, with the one year period of living separate and apart, families will 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 running the day-to-day operations of family out of two separate homes.

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