Virginia Legal Separation Explained
There is no legal or formal term "legal separation" in Virginia. So unlike many other states that have a period of time where you are legally separated from your spouse that is defined in a statute, Virginia does not have a legal separation period defined.
Some practical realities exist that can cause people to be legally separated and perhaps even give the illusion of being legally separated, but there is not a true legal concept of legal separation in Virginia. This is a pretty significant distinction in Virginia, because instead of dating a legal separation date for some purposes, the date of filing for divorce is the relevant date.
For reference, I’ll have a more detailed explanation of this on the Divorce in Virginia page of this blog. The only circumstance where the date of separation has some importance is the Virginia law related to adultery. The date of separation is relevant, but there are other date-related technicalities that allow a spouse to potentially have to contend with an adultery claim even 20 years after the fact.
One case in Virginia that is very commonly cited as being "the law" on legal separation in Virginia is McMonigle v. McMonigle, 185 Va . 367, 370 (1946):
We think it is manifest from the above authorities that proof of a mere physical separation of the parties to a marriage, litigable in character, is insufficient to prove the dissolution of the marital unit. . . .
The law, properly interpreted, is founded on the theory that marriage is a contractual relation, the dissolution of which, while possible, is a measure of public policy.
Until then, the law recognizes the parties as reciprocally charged with duties and obligations flowing from their marital relation, which are the product of the contract itself.
It seems to us that the above authorities reiterate the universally accepted rule that marital cohabitation during the marriage, whether continuous or interrupted but with full knowledge of the partner, constitutes a waiver or relinquishment of the right to insist upon performance of marital obligations; and that the resumption of such conduct with full knowledge of the partner, constitutes a revival of such obligations.
To sum it all up, there is no legal concept of legal separation in Virginia, and all of the rules and discussion related to things like date of separation don’t really apply to Virginia law related to divorce.
Can You Separate Legally While Living Together in Virginia?
One of the most commonly asked questions by parties seeking a meaningful change in their relationship status is whether its possible to separate and remain living in the same house. In Virginia, the general rule is that parties need to live separate and apart from one another if they wish to establish legal separation. For a separation agreement to be enforceable, parties need to physically move out of the marital residence and establish separate physical living quarters.
Now, that does not mean that parties must separate under the same roof. Some couples do remain in the same home while separated, either out of economic necessity or the desire to maintain current living conditions for the minor children. While Virginia does not have any specific statutory provision allowing for such circumstances, it has been true for several decades that the Court will permit parties to remain under the same roof and recognize physical separation.
Under the circumstances, however, it is always best for the parties to memorialize the agreement to dwell together under the same roof. Written agreement not only helps to increase recourse should an argument occur between the parties, but it also prevents future litigation and disputes by a third-party that noticed you continuing to live together (usually a neighbor or family member). While it is a case-by-case situation, Courts tend to accept and enforce these types of physical separation arrangements.
The Legal Consequences to Living in the Same Household During Separation
The legal implications of spouses living together during a period of separation in Virginia have been addressed explicitly by the Virginia Supreme Court. The Court has stated that a cohabitating relationship can deprive a spouse of her right to spousal support. When the parties have been separated for more than one year, remarriage or cohabitation will generally bar a former spouse from receiving additional spousal support.
The Virginia Court of Appeals has also expressly found that a new someone does not displace a prior spouse from their rightful status as a dependent and possible recipient of spousal support. The Court found that a new girlfriend did not interfere with a husband’s obligation to continue paying spousal support to his wife when the husband and wife had been living apart after their divorce. Cooper v. Cooper, 1 M. App. 180, 337 S.E.2D 325 (1985). The Code of Virginia is specific about how adultery and sexual relations between the parties and third parties may affect spousal maintenance and support in Virginia. Under Virginia law, adultery is a statutory ground for divorce. A spouse who has been unfaithful and who is requesting spousal maintenance and support will not receive any spousal support unless he or she can prove that the unfaithfulness was presumptive, i.e. two sexual partners in a two week period – a bright line rule. Va. Code Ann. § 20-91(A)(1) (2012) A recent case distinguished between one instance of cohabitation causing a diminution of a spouse’s interest and an ongoing relationship leading to the termination of the obligation to pay support under Virginia law. McCaffrey v. McCaffrey, 249 Va. 373, 457 S.E.2d 745 (Va. 1995). Compare Sutherland v. Sutherland, 4 M App. 579, 351 S.E.2d 60 (Va. 1986).
Generally, your new relationship will not extinguish the right to equitable distribution, though this issue has not been directly addressed by Virginia law. Compare Jones v. Harman, 33 Ga. 638 (1870); Reed v. Reed, 708 P.2d 811 (1985); and Lewis v. Lewis, 568 P.2d 904 (1977). But see Richard v. Richard, 364 So. 2d 909 (La. App. 1979).
Separating Legally: Grounds and Proof
Establishing Grounds for Legal Separation While Living Together
Located in the Virginia Statutes (the Code of Virginia), the grounds for legally separating from a spouse is established in § 20-91 titled Grounds for divorce from bonds of marriage for causes therein specified; exceptions. Separation, or at least the attempt at separation, is one basis for divorce in Virginia, and it is the most common ground that people look to exercise when they finally feel they have had enough.
Fault Grounds Of Divorce For Living Separately Virginia law provides a few different grounds for separation. The first one we will review is at the bottom of the required separation period of one year, and is the no-fault ground. The two fault grounds of adultery and cruelty require no waiting period.
The first fault ground is Adultery. Adultery is technically defined as the act of voluntary sexual intercourse by a married person with a person who is not that person’s spouse, but we can think of adultery more simply as sexual relations outside of marriage. Adultery is different than adultery (for a fault grounds, as opposed to the no-fault separation grounds) in that there need not be any proof of an actual act, but rather there is evidence that the spouse had "the inclination" and the "opportunity" to commit adultery (without actually doing so).
The second fault ground is Cruelty. When seeking a divorce and grounds of cruelty, it must be established that either physical violence or reasonable apprehension thereof is present and that the act of cruelty must have occurred during the marriage and is such that it would cause a reasonable person to be fearful of such physical violence.
No-Fault Grounds Of Divorce For Living Separately There are two primary forms of no-fault divorce in Virginia, which are: 1) being separated for a minimum of one year without cohabitation; or 2) being separated for six months and having no minor children while also having either filed an uncontested pleading to divorce or having entered into a mutually-agreed upon Property Settlement and Separation Agreement.
The most common form of divorce in Virginia is the one year separation. In situations where the parties are living together during the separation period, there is no hard and fast rule, but there may be some waiting period between periods of cohabitation as opposed to living separate and apart. The law does indicate that the periods of living separate and apart must be continuous; however, the lines are not always crystal clear and the Court may determine that any resumption of cohabitation would create a presumption that the parties resumed their roles as husband and wife.
Financial Implications: Living in the Same Household During a Separation
The intricacies of asset division in legal separations have been the subject of much scholarly writing over the years. It is perhaps safe to say that the concept of dividing financial assets after the dissolution of a marriage has long been recognized and expected. But what happens when a legal separation does not involve separation at all, but instead the parties continue to reside under the same roof, long after the personal bonds of matrimony have been severed?
Who pays for what when you are no longer spouses, but still live together? This is a question that often comes up in legal separation cases. In Virginia, it is not uncommon for one legally separated spouse to live on the property owned by the other, either in a separate rental unit or simply sharing the space in a large house. As an initial matter, the date of separation will dictate how assets are divided – assets held by either spouse before separation are considered marital property. Any money earned during the separation will be considered separate property. Some expenses, such as home repairs, preparation of joint tax returns, and other large expenditures can be divided and paid from the proceeds of a jointly held account, or if that is not possible, from the proceeds of an asset to be sold . Even if a spouse used marital buying power to make a purchase such as a car, the date of separation controls the question of whether a spouse will receive any portion of the asset’s value. But as the separation drags on and the parties continue to co-habit the same home for months, reconciliations hold no promise and neither spouse is prepared to buy the other out of the marital home, how do you pay the expenses? Simply failing to pay for a mortgage or maintenance may violate a duty of good faith towards the other spouse, so doing nothing is not an option. Some couples agree to pay their own expenses directly. So, for example, spouse A pays the utility bills, while all other bills are paid by spouse B. This does not normally result in litigation. Most families just agree to pay their own bills because it makes economic sense. Generally, the bills will also be smaller. Another option might be to sell your marital home and both get out of each other’s hair. While the costs of moving might be substantial, so is the cost of cohabitating with your soon to be ex-spouse. Before entering into a legal separation with your spouse, consider the financial implications of having separate households and whether or not you will be able to afford to do so. Then consider how to divide the expenses until you have established your new home separate and apart from one another.
Effects on Custody and Support
Living together during a legal separation can have a profound effect on child custody and support arrangements. The way parenting arrangements are structured can directly impact how child support is ultimately determined. Virginia courts consider possession of a child from the home as a factor in determining which parent pays child support. Therefore, if one parent retains the physical possession of the children, then that parent may be more likely to paying out support. However, if parents are sharing possession equally, then this often results in a wash, meaning that neither parent will be paying child support. These circumstances should be laid out in writing in a parenting agreement. Courts highly encourage parents to work together to reach a parenting arrangement that works best for them and more importantly the kids. Parents can agree to receiving child support in either virtual or physical forms, whether that be in the form of money, groceries, gas, or other payments. If parents fail to pay agreed upon child support, enforcement measures can be sought through the court system.
How to Separate Legally: Create a Legally Binding Separation Agreement
It is important to keep in mind that legal separation does not have to mean physical separation. Many couples live "separate and apart" but under the same roof for weeks, months, or years. Mediating the issues during a legal separation while living together can save money, avoid lengthy litigation, and is an opportunity for couples to get along better and keep the peace.
How would one go about formalizing their separation while living together?
The first step is to draft a written Separation Agreement. The Agreement will consider all of your assets, debts, income, and expenses. It must become legally binding by having it notarized (signed in front of a notary public) and recorded with the land records in your county or city circuit court if you own real property. In Virginia, you can sign the Agreement on the same day you separate (the date of separation is the day you or your spouse intends to make a permanent change in your financial or emotional residence); however, it is common for spouses to sign on different days.
Since you are voluntarily signing this legal document, you need not be separated for a certain period of time prior to signing. Just like a pre-marital agreement, you and your spouse can enter into the Agreement prior to the date of separation.
Once you have completed your Separation Agreement, you may file for the divorce. In Virginia, an uncontested divorce is possible if you and your spouse have resolved all issues pertaining to the Marriage and it has been at least one year since you separate from each other. These issues may include how to divide your personal property (including household furnishings, appliances, jewelry, vehicles, bank accounts, etc.), how to pay your debts (including obligations incurred prior to the date of separation as well as debts incurred during the period of living separate and apart), whether ongoing spousal support will be paid – including the amount and how long it will last, and custody, visitation and child support for any children of the marriage. If there are minor children involved, a Final Order of Custody and Support must be obtained. If you do not have children of the marriage the Divorce Decree is the final order and no further action is necessary. However, if you do have children of the marriage, once you obtain the custody and/or support Order, you must leave the case open for periodic reviews until the children are no longer minors (typically age 18). Generally, divorce is not finalized until all agreements are executed, and all Orders are obtained.
You may also choose to sign a premarital (ante-nuptial) or postnuptial agreement with your spouse governing certain issues of a separation and divorce. These documents usually set forth issues such as the maintenance of the marital home, child support, spousal support, division of property, or any other issue that a Court would normally decide in a divorce action. Both premarital agreements and postnuptial agreements must be executed according to the requirements of Va. Code Ann. § 20-155, et seq.
The Pitfalls of Keeping a Shared Residence and How to Avoid Them
If for no other reason than the real estate market still remains in a recession, many couples who separate in Virginia find themselves having to physically "separate" while living in the same residence. While that may be the most financially prudent option, it adds another layer of emotional stress to an already highly emotional situation. Newly separated persons need to remember to go back to basic communication skills that we all learned in kindergarten and remember to "play nice" with each another. It is still important to treat your spouse with kindness and respect even if you no longer love him or her. In fact, it is probably more important to treat your spouse with kindness and respect than ever before. Sometimes, however, what seems polite and respectful to you may not seem that way to your spouse. For example, after you have had a stressful day at work, you arrive home from work ready to kick your shoes off and relax on the couch for a while before starting dinner or doing any other chores or errands. Your spouse, however, may begin clean-up chores that you are not ready to do and may be upset when you sit down to watch t.v. instead of contributing to the daily work of running a home. This can be a source of tension among people who are living together, even if they are in a relatively good state of mind. In situations like this it is essential to breathe deeply and try to be non-judgmental. Since your spouse is not going to read your mind, you need to clearly and calmly express to him or her how you are feeling. "I feel overwhelmed by the end of the day and need to unwind a bit before I dive into chores around the house. I promise to help clean up once I can get the television out of my head . " Or "I would prefer to get these chores done earlier in the evening so that we can have some quiet time with each other before bed." By calmly expressing your opinions and needs, you are letting your spouse know that you respect and value his or her opinions, but you also wish to have your opinions and challenges in life respected as well. Although you may still be angry at your spouse, you need to try to establish at least one "date night" a week. Things do not need to be glamorous. You might simply go for a walk, take in a movie that the two of you are both interested in, or go bowling. What’s important is just being together. You haven’t had a chance to be together, without the kids, for years. You need to try to rekindle the romance, even if you both know that it’s not going to go anywhere. Many times, when people separate but live together, they have regrets about separating because they realize that they will be leaving behind someone who knows them both well and really cares about them. Also, if you plan to have the marital home for sale, you both need to be present to clean and stage the house together when buyers come to look at it. If your personal belongings are minimal, you might want to have a "moving out day" in which you return to the home to pack your belongings and take them to your new residence. This is yet another opportunity to spend a last day with your spouse and your children before relocating. Communication and kindness are the keys to legal separation. If you need help with the legal aspects of a legal separation in Virginia, please seek out legal counsel that you trust and feel comfortable with.