Can I be legally separated in Virginia?

Short Answer: No

How do I get a legal separation is one of the questions I am asked most frequently in consultations with potential divorce clients.  There is no such thing as legal separation in Virginia.  In Virginia you are either 1) Married and living together; 2) Married and living apart; or 3) Divorced.

 

In order to obtain a no-fault divorce in Virginia, you and your spouse must have lived separate and apart without any cohabitation and without interruption for one year.  However, a divorce may be granted upon a period of separation of only six months if the parties have entered into a valid property settlement agreement and there are no children born or adopted by the parties.

 

The period of separation is based on public policy.  The state wants married couples with children to be absolutely certain that divorce is the best option for their family.  Typically, living separate and apart meant that one party had to move out of the marital residence and establish a new residence elsewhere.  However, the economic downturn has forced some couples to try and live separate and apart under the same roof.  This can be dangerous as some courts refuse to accept these arrangements.  If the court refuses to accept your alternative living arrangement, your separation period will not begin to accrue until one party moves out of the marital residence.  To improve your chances of having a court accept your living separately under one roof, we recommend that you and your spouse do the following (this is not an exhaustive list):

 

  • One spouse should deliver a formal letter to the other stating the intention to live separate and apart as of a certain date
  • Abstain from sexual relations with your spouse
  • Sleep in separate bedrooms
  • Do Not share food
  • Do Not Cook and Shop for each other
  • Do Not do each other’s laundry
  • Do Not give gifts to each other
  • Do Not attend social functions together
  • Do Not go out to eat together
  • Do Not hold yourself out to be a married couple
  • Separate Phone bills, email accounts, and bank accounts
  • Consider paying off and closing joint accounts and credit cards
  • Divide up household expenses, i.e. the electric bill

**This is not an exhaustive list.  Additionally, performing each item of this list does not guarantee that a judge will accept your alternative living arrangement.

 

If you need help with a divorce or custody case in the Chesterfield, Colonial Heights, Dinwiddie, Hopewell, Petersburg, Prince George, or Sussex. Give us a call at (804) 668-5327 and schedule a consultation to discuss in more detail.