In Virginia, spouses are allowed to separate or “live apart” if they are experiencing marital conflict but are not ready or willing to divorce. Unlike other states, Virginia courts do not grant “legal separations,” but they do allow married couples to separate, provided that they “stop living as husband and wife” (or as spouses). This does not necessarily mean that the two spouses must live in two separate physical locations, though this is the most common way in which spouses separate.
The laws governing separations in Virginia are complex and differ from other states, such as Maryland and Georgia. If you and your spouse are considering a separation, DiPietro Law Group, PLLC can help ensure that you understand the full legal ramifications and that your interests are fully protected. Our Fairfax separation lawyers are here to answer your questions and provide you with clear and honest legal counsel.
Contact our firm today to learn more about how we can help you with your separation or divorce.
Separation as Grounds for Divorce
Virginia law provides for a “no-fault” divorce on the grounds that a couple has been living “separate and apart” for the specified period of time. This requires both physical separation and an intent to separate. Usually, the physical requirement is satisfied by one party moving out of the family home. Although it is possible to live separate under the same roof, you must be prepared to meet strict guidelines to prove that sufficient separation has occurred.
In addition to the physical separation, at least one spouse must communicate a specific intent to end the marriage. It is best to put this intent in writing for evidentiary purposes.
In most cases, you and your spouse must live separately for at least one year before you may file for divorce on grounds of separation. If you don’t have children, you may be granted a divorce after six months of living separate and apart if you have a written separation agreement.
Separation Agreements in Virginia
While Virginia courts do not grant legal separations in the same way that other state courts do, married couples who wish to separate but not divorce may sign a separation agreement. This is a legally binding document that outlines the various terms of the separation. A separation agreement may be incorporated into a divorce decree, and can protect parties and help streamline the divorce process.
Much like a divorce agreement, separation agreements can address various issues, such as:
- Child custody
- Child support
- Division of property
- Allocation of debts
Separation agreements can also be used to specify who will pay for various household expenses if you decide to continue living in the same house. In addition, separation agreements can resolve matters that a judge would not have jurisdiction to decide as part of the divorce, such as how parents will handle college expenses.
However, separation agreements cannot legally contain certain provisions. For instance, a provision in which a parent waives the right to seek future child support would be unenforceable because child support is the right of the child, not the parent. Similarly, provisions that require a parent to give up custody if they move away would also be unenforceable because custody decisions are always based on the court’s determination of the child’s best interests rather than the plans of the parents.
The Benefits of Creating a Separation Agreement
The terms of a separation agreement can settle all the key issues between a divorcing couple, protecting their respective interests immediately. Because a couple resolves all the critical issues in advance outside of court, a separation agreement cuts out the need for costly litigation.
When divorcing couples work with their attorneys to negotiate the terms of a separation agreement, they maintain control of the outcome and can develop solutions that work for both of them. If critical decisions are left to the judge, the results may be unsatisfactory for everyone.
For couples without children together, having a separation shortens the required length of time they must live “separate and apart” before becoming eligible to file for a no-fault divorce.
Although a separation agreement does not carry the strength of a court order unless and until it is made part of a final divorce decree, it is a legally enforceable contract. A separation agreement can be particularly valuable for protecting a spouses’ financial interests because the agreement establishes a firm separation date that ends their liability for debts incurred by the other spouse.
A Separation Agreement is Legally Binding
It is important to understand that separation agreements are legally binding and permanent for both spouses, with only a few exceptions. Child custody and support arrangements can be modified after a certain period of time, and separation agreements can be voided if the two parties reunite.
However, a separation agreement can be enforced indefinitely, even if the terms cause hardship to one party or one partner signed the agreement in the expectation that they would be reuniting so the agreement would soon be meaningless.
Therefore, it is essential to have a clear understanding of your legal rights before developing and signing an agreement, and the best way to do that is to work with an experienced Fairfax separation attorney during the process. If your spouse or your spouse’s attorney has drafted a separation agreement and asks for your signature, it is especially critical to have your own attorney review the terms carefully to ensure that the document respects your rights and interests.
Separation as an Alternative to Divorce
Though uncommon, separation can be used as an indefinite alternative to divorce. Known as a “bed and board” divorce, this is usually used when two individuals do not wish to remain married but are unwilling or unable to divorce due to religious reasons.
Essentially, this is a form of legal separation in which the court determines the terms of the separation because the spouses are unable to agree. In divorce from bed and board cases, the court may rule on such issues as child support and custody, spousal support, and the division of property. If you are granted a divorce from bed and board, you may ultimately convert it to an absolute divorce after one year’s time.
What qualifies as separation in Virginia?
Each state defines separation a little differently, so you need to understand what constitutes separation under the specific state law that applies to your case. In Virginia, Section 20-91(9)(a) of the Virginia Code specifies that parties have grounds for divorce when they live “separate and apart without any cohabitation and without interruption for one year.”
Without cohabitation essentially means without “living together as husband and wife.” This includes more than just not having sex. It involves developing separate living arrangements and social lives. It is a vague standard, so that makes evidence crucial.
Evidence of lives that are still intertwined – such as joint bank accounts or even attending events together—can refute the idea that a couple is separated. Telling friends and family members about the separation can help provide evidence that a couple is truly living separate and apart. Of course, signing a separation agreement provides evidence that a couple intends to live separately, but intent must be followed up with action.
What voids a separation agreement in VA?
If you resume a marital relationship—even briefly—that can give a court grounds to void your separation agreement. However, you can have your attorney specify in the agreement that it will remain in effect even if there is a reconciliation. (The reconciliation will restart the clock on the separation time regardless of what the separation agreement says.)
It is also possible to convince a court to declare a separation agreement void if one party can show that they signed under duress and that the terms were unconscionable because they were so unfair that a reasonable person would not have signed it unless they were coerced in some way.
How do you legally separate from your spouse in Virginia?
Virginia does not recognize legal separation as a status. To establish a separation as grounds for divorce, you must live separate and apart as described above for one year (or six months if you don’t have kids but do have a signed separation agreement.) In addition, at least one of you must have a genuine intent to end the marriage.
Are separation agreements binding?
Once you have signed a separation agreement, that agreement is legally binding unless one party can prove unconscionability and duress. An agreement that is simply a bad bargain is usually not severe enough to be considered unconscionable. Because it is so hard to void a separation agreement, it is crucial to have your attorney review the terms before signing.
Can you be separated and live in the same house in VA?
While it is possible to be considered living separate and apart while in the same house, it is important to establish evidence to show that you are not living as a married couple. For instance, both parties should keep as many aspects of their lives apart as possible, from separate bank accounts to separate loads of laundry. It is best if each party has their own designated spaces within the house and avoids spending time in the other’s part of the house or attending the same social events. Make sure you have some independent witnesses who can verify that they have seen you living separately under the same roof.
Contact Our Family Law Attorneys Today for Help With Separation
While separation may seem less complicated than absolute divorce, the implications of separation in Virginia can actually be quite complex. Even without any stipulations in writing, your actions can have legally binding consequences. Separation agreements can be a valuable tool in divorce and offer the best protection for your interests.
If you plan to enter into a separation agreement, you need to treat the terms with the same level of care as the divorce itself. No matter what your circumstances, it is crucial that you fully understand your legal rights and options. Our Fairfax separation lawyers are ready to help.
Call us today to request a confidential consultation to learn how we can protect your interests throughout separation and divorce.