Separation in Virginia means to live “separate and apart without any cohabitation and without interruption. After the separation period of either 6 months (without children) or one year (with children), you two can divorce.
A cohabitating, married Virginia couple is assumed to provide various marital benefits for one another:
If you take all that away, two married people could co-exist under the same roof and still be separated. Separation in Virginia is the cessation of all the activities of married life — cohabitation — based on social norms. In Virginia legal parlance, “cohabitation” is the key word:
To separate from your spouse, you need to end all the social norms of cohabitation:
The Code of Virginia section regarding separation is:
Since legal separation is not a legal concept in Virginia, this single section — indeed, a single sentence within the section — carries the entire legal burden:
You can prove separation by a notarized letter, signed by both spouses, stipulating the date of separation. You can also use evidence such as diary entries, calendars, and notices on social media. These are all needed well after the separation begins, as you pursue a divorce.
By far the easiest, most legally sound way to demonstrate separation before divorce is through a property settlement agreement. The agreement can have many names. An incomplete list includes:
We are not trying to be ridiculous; you need to be prepared to recognize the document under whatever name an attorney uses. The agreement is a legally recognized marital contract that informs a Virginia Circuit Court of the date of separation and the couple’s agreed conditions for separation and divorce.
All states accept documentation of separation, including Virginia. In some states, married folks can get a legal separation, meaning they are recognized by a state court to be apart but still married. Virginia does not allow a court to sanction a separation.
An alternative to a “legal separation” in Virginia is a divorce from bed and board. The literal meaning of that type of divorce is that the two people no longer sleep together, have sex, or feed each other.
The court can recognize they are separate but still married. The reasons for a Virginia divorce from bed and board are brutal:
One party must accuse the other of at least one of these behaviors, and the accused party must be found guilty. That is a stigma few people are eager to dispense or assume.
Still, divorce from bed and board is an alternative to both “legal separation” and a divorce from the bonds of matrimony, with very narrow guidelines as laid out in Virginia Code § 20-116:
In granting a divorce from bed and board, the court may decree that the parties be perpetually separated and protected in their persons and property. Such decree shall operate upon property thereafter acquired, and upon the personal rights and legal capacities of the parties, as a decree for a divorce from the bond of matrimony, except that neither party shall marry again during the life of the other.
Far easier than a divorce from bed and board is the creation of a separation agreement.
A certain do-it-yourself van rental company once had the unfortunate slogan, “Adventure in Moving.” Who wants an adventure when you are moving a refrigerator? You can think of separation and divorce as moving on with your life, and you hardly want that to be a spine-tingling adventure.
A separation agreement (also known as a property settlement agreement) is a plan, an agenda, and a roadmap to a happier, calmer life after divorce. Separation agreements are usually drafted by one of the two attorneys and then revised through negotiation until both spouses agree on all the terms.
Using a separation agreement leads to a smooth and uneventful separation period and a relatively inexpensive divorce, since a judge is being asked only to sign off on the marital agreement ending the marriage. It is a way to avoid costly courtroom time and conflict.
The five critical issues that must be presented to a judge in a property settlement agreement are intended to detangle two lives:
For each aspect, every detail needs to be spelled out clearly, so no ambiguity can cause post-divorce confusion. The more detail you put into the property settlement agreement, the less conflict and fewer issues will crop up after the divorce.
As soon as you begin contemplating a separation and divorce, you will greatly improve your life by contacting an experienced family law attorney. With an early consultation, you can learn the best ways to move ahead with separation and divorce in Virginia. You can also learn what to avoid, why the myth of “legal separation” is useless, and how best to keep a clear, calm head.
Your attorney will be in touch with your spouse’s attorney to develop a separation agreement. The two attorneys will provide useful, correct advice on how to separate, what to expect during the waiting period, and how to divorce efficiently and economically.
The Firm For Men has the expertise to guide any Virginia man through separation. Contact us today or telephone us at (757) 383-9184 to set up your initial consultation.
