In Virginia, to obtain a “no-fault” divorce, a couple must live “separate and apart” without interruption for one year (six months, if the couple has a property settlement agreement and no children in common).
When a couple has decided that their marriage no longer works, without the fault of either party, but cannot afford to establish two separate households, they can usually continue to live “separate and apart” in the same house. But when doing so, the couple must use caution as courts vary on what they consider to be living as “separate and apart”.
Before 2002, courts were split on whether living under the same roof during a separation could constitute living “separate and apart”. Since then, the Virginia Court of Appeals has clarified that parties are able to live separate and apart while living in the same residence. However, the court did not outline how a husband and wife can live separate and apart while living in the same home. Your family law attorney can assist you in the process if you are considering a separation with your spouse in the same home.
What Steps to Take When Considering Living “Separate and Apart” Together
All separation must be evidenced and proved by corroboration of a third party, typically a friend or other family member.
Courts have varied on whether couples have met the requirements as to sufficiently live “separate and apart”. Because court rulings vary based on your unique circumstances, you should contact an experienced family law attorney for advice regarding your situation.
Among some of the factors a court will consider are whether you and your spouse eat meals separately, engage in sexual relations, share household duties, share a bedroom, have joint bank accounts, and whether you and your spouse hold yourselves out as a married couple. Because there is no list of comprehensive factors for a spouse to abide by during their separation, advice of a divorce attorney will assist you in deciding what steps to take.
Courts will not grant a “no-fault” divorce to a couple who has not lived “separate and apart”. Make sure that if you and your spouse are getting a divorce, you do not face technical obstacles that prevent your divorce.