In Virginia, to obtain a “no-fault” divorce, a couple must live “separate and apart” without interruption for one year (or six months, if the couple has a property settlement agreement and no children in common).
When a couple decides that their marriage no longer works but cannot afford to establish two separate households, they may continue to live “separate and apart” in the same house. However, it’s crucial to proceed with caution, as courts vary in their interpretations of what constitutes living “separate and apart.”
Before 2002, courts were divided on whether living under the same roof during separation could qualify as living “separate and apart.” Since then, the Virginia Court of Appeals has clarified that parties can live separate and apart while living in the same residence. However, the court did not provide specific guidelines on how this should be done. Your family law attorney can help guide you through the process if you are considering this arrangement.
What Steps to Take When Considering Living “Separate and Apart” Together
Separation must be evidenced and proven by corroboration from a third party, typically a friend or family member.
Courts have varied on what constitutes living “separate and apart.” Because court rulings depend on your unique circumstances, it’s important to contact an experienced family law attorney for advice on your situation.
Some factors courts consider include whether:
- You and your spouse eat meals separately
- You engage in sexual relations
- You share household duties
- You share a bedroom
- You have joint bank accounts
- You and your spouse present yourselves as a married couple
Since there isn’t a comprehensive list of factors to follow during separation, seeking advice from a divorce attorney is crucial to ensure you take the proper steps.
Conclusion
Courts will not grant a “no-fault” divorce to a couple that has not lived “separate and apart.” To avoid any technical obstacles that could prevent your divorce, make sure your separation arrangement meets the court’s requirements.
