What Is Legal Separation in Virginia?
In Virginia, there is really no "legal separation." A legal separation generally means that you and your spouse have divided your lives and finances, and you have established a "separate and apart" relationship and are living in two different places. However, with regard to Virginia divorce, there is no such thing as legal separation. Virginia’s "separate and apart" status comes into play once you have actually separated with the intent of a permanent separation. So there is quite a bit of misconception out there about what "legal separation" means in Virginia. There are very specific reasons for pursuing a legal separation vs. proceeding with the divorce process. Many people think they are separated (they are no longer living together) but they still are legally married . Without having a signed Property Settlement Agreement or having a Court Order dividing assets, you are still married. Once you have a Property Settlement Agreement signed and notarized, or have a signed Court Order, you are no longer legally married. You are then separated in the eyes of the Commonwealth of Virginia.
In deciding whether to separate or pursue a divorce in Virginia, you should consider the following:
Virginia does not recognize legal separation as a status. You are either married or you are divorced. You can separate from your spouse, but you have to have a Separation and Property Settlement Agreement signed and notarized, or a Court Order, dividing your assets, debts and any custody arrangement that you may have regarding children. You must be separated for one year, or six months if you have no children and both parties agree to a divorce by agreement.
Why Legal Separation May Be Right for You
The most common reason is that a couple does not yet want to divorce for personal reasons but wants to establish some type of financial and physical separation. Often this is done to protect one spouse from financial abuse by another—for example, one person might be siphoning funds from a joint account. Obtaining a legal separation would involve creating a court order outlining what assets each party will keep, who pays which bills, and how children will share their time between homes, for example. Making these agreements legally binding can accelerate the process in case a divorce is necessary later on.
Some people may choose separation instead of divorce for religious reasons. In Virginia, it is possible to have a limited divorce that allows you to get a legal separation without terminating your marriage.
Others may use the period of separation as a trial run to determine whether divorce is truly necessary. It is critical, however, to be aware that if you are living with your spouse during this time, or in the same household, Virginia courts will not consider you separated for purposes of calculating the date of separation or granting a divorce.
If you are considering a legal separation in Virginia, or whether to pursue divorce, consult with an experienced Virginia family law attorney who can advise you about separation agreements and the options that are right for you.
How to Establish a Legal Separation in Virginia
Prior to filing anything in court asking for support, custody, visitation or equitable distribution, the parties must be separated as defined by Virginia law. A Separation Agreement is not required to establish separation but it will help set out ground rules for your conduct while separated.
There are practical issues involved in establishing a physical separation from your spouse wherever you may live in Virginia. In short, one of you (or both of you) must physically go somewhere else and live there. It does not have to be a certain distance away or in another county. You do not need a legal paper or anything like that to define a physical separation. Have two different mailing addresses for a few weeks or months and then either obtain a Separation Agreement or file something in Court.
It is possible to separate without a party having to change residence. For example, if the wife moves all her clothes and belongings into another bedroom and lives and sleeps there for a few weeks or months, that can be deemed a "trial" separation and would probably be sufficient to establish an effective separation. Or a couple might decide at dinner and dessert that they are separated but leave their house in place and work out the practical details later. This is not ideal as practical matters must be observed.
It is wise to consider having a Separation Agreement in place before separating. It will set out various agreements and understands that you both agree to abide by until the divorce is finalized. It will address circumstances like handling cars with jointly titled property, mortgages, checking and savings accounts, phone bills etc. Some provisions will be helpful and beneficial, others not. It will be better to sign a Separation Agreement with provisions you don’t like than to move out without an agreement. If things go smoothly, you can disregard the provision or provisions you don’t like. If things don’t go as you expect after the separation, you’ll be glad you signed the separation agreement. At least you’ll know where you stand and have a solid bargaining position.
The physical separation must be "of full and complete bodily separation" which does not mean one party lived exclusively at another residence and the other occupies the "marital home." There must be a mutual intention to terminate the "marital cohabitation as married persons" and engage in conduct consistent with that intent. Most of the time, a Separation Agreement is the practical answer to the problem of how to establish and prove a separation.
How to Put Together a Legal Separation Agreement
When parties are both motivated to get a legal separation, they often enter into a separation agreement. A separation agreement is a signed contract on how the parties shall divide assets and debts, and if the parties have children, the agreement will also address custody and parenting time. A separation agreement can also address spousal support, insurance, and other issues. The separation agreement should state that the parties are no longer responsible for one another’s debts and that a party’s credit should not be impacted by the other party’s actions.
Since a separation agreement is essentially a contract, it is important that the language is precise. Language should not be ambiguous or vague. If the parties have children, many times a qualified lawyer will guide the client through a discussion about what is in the best interest of the child.
The importance of a separation agreement cannot be understated. A separation agreement allows the parties to move forward with their life knowing that all aspects of the marriage have been dealt with. If the separation agreement states that the parties are free to marry at any time, the parties are free to remarry without the party being required to pay alimony to their ex-spouse. However, it is very important that a lawyer review the agreement and that both parties fully understand the agreement.
How a Legal Separation Agreement Affects Your Legal Situation
Virginia law recognizes the enforceability of a separation agreement signed by both parties, even when no court order approving the agreement has been obtained. This means that such an agreement can be legally binding on both parties. However, if either party files for divorce without signing the agreement, it may be more difficult to enforce in court—particularly in relation to spousal support and property division. Courts in Virginia are not bound to enforce such agreements in the context of divorce proceedings, but could use the separation agreement as one piece of evidence in the divorce process . Courts use a number of factors to determine the distribution of marital property and the payment of spousal support, which is outlined in the Code of Virginia under section 20-107.1. The division of property and spousal support obligation, if any, will vary greatly from case to case.
One of the benefits of a separation agreement is that it establishes financial support and property distribution before a divorce proceeding, and can provide both parties with the sense of closure needed before moving on with their lives.
The Effects of Legal Separation on Child Custody and Support
When a couple is legally separated in Virginia, how this impacts on child custody and support issues is very important to consider. Most importantly, if there are children of the marriage, the separation itself does not change custody or visitation or child support rights and obligations. Just because a spouse leaves the couple’s residence to live independently (or even if they both agree to live separately and apart), this does not impact on child custody, visitation or support obligations unless and until the parties enter into a written agreement or obtain a Court Order addressing these issues. The Court will certainly consider the fact that the parties have lived separately for a period of time but the issue is not resolved until the Court makes an affirmative determination in this regard, which it will likely make at the final hearing on the issue of divorce.
Often times separating spouses will agree on who will reside with the children and who will pay child support during the separation period. The parties can enter into a written agreement and present this to the Judge at their Divorce hearing. Or the parties can enter into an Order by Consent with the Circuit Court Judge to have these terms approved.
In some cases, if the parties cannot reach an agreement on custody, the Circuit Court is likely to Enter a temporary Order granting one spouse temporary custody of the children pending the final hearing on all of the issues, including (but not limited to) divorce, child custody and child support.
Another route is for either spouse to file a motion (called a Motion for a Temporary Injunction). In this scenario, one spouse would request, and the Court would issue, a temporary order dealing with custody and visitation and/or child support. Once these temporary issues are resolved, usually at the initial hearing on the Motion, the Court will schedule a "Status Hearing" to address the finality of the parties’ divorce and to schedule a trial to resolve any issues and details remaining. A "status hearing" usually takes 2-3 minutes-it’s really just to determine whether or not a trial is needed at which time each party will testify. As a temporary injunction only comes into effect if a spouse needs an interim ruling on custody, child support, etc., they are infrequently used.
Entry of a Divorce Decree or Entry of a Written Agreement by — or Approved by – a Circuit Court Judge in Virginia, will be what governs custody, visitation and child support of the parties’ children. Until that occurs, the Court will look at whatever arrangements the parties entered into.
How to Turn a Separation Into a Divorce
If you have gone through the period of separation and have decided to move forward, keep in mind that you cannot obtain a divorce until some period of time has passed after the date of separation. In Virginia, there are two grounds for divorce based on separation: (1) separation from bed and board, or "limited divorce"; and (2) separation from bed and board and adultery, felony conviction, cruelty, etc., for a period of more than one year; (3) separation for more than 6 months with no minor children, or for more than one year if there are minor children.
It is important to understand that if you are separated for a period of time and do not file for a divorce after such separation, you may lose your right to do so as courts have the discretion to treat the separation as a divorce by court order.
In most situations, a fault divorce takes a year or more to conclude. A separation agreement may help expedite a final divorce—a court will not grant a fault divorce without a reason for divorce, so if couples have reached terms and conditions for their divorce, those issues can be more quickly resolved by presenting the agreement to the court.
When to Consult With a Virginia Family Lawyer
Only Virginia family lawyers can offer real insight into the legal issues that arise in the various forms of separation. For example, while married couples generally cannot divide their property until they are separated for one year or six months, depending on their circumstances, many married couples spend years negotiating complex property settlements outside of the context of having a formal separation agreement. From a legal perspective, a property settlement reached before a formal divorce is voidable if the parties (or their children) later object to it. However, Virginia courts will generally enforce such agreements so long as they were entered into in good faith. Consulting with a Virginia family lawyer can provide you with insight into what courts may do if your agreement ends up being challenged.
Virginia family lawyers are the right people to help you sort out your options. Virginia is a no fault divorce state, but that does not mean the law does not require that certain things occur before a final divorce decree is issued. For example , there is a requirement that one ex-spouse must relinquish his or her claim to a former spouse’s medical insurance before the other spouse can begin using it. There are also strict rules in Virginia regarding when a divorce decree is effective that can cause unfair results if not properly followed. For example, if a decree is not executed until after the 4th day of the month after the month an Absolute Divorce becomes effective, the decree does not take effect until the first day of the second calendar month after the month of execution, according to Virginia Code Section 20-121. So for example, if a Decree of Divorce is executed on August 3, the Absolute Divorce is generally effective on September 1 but the Judgment of Divorce does not take effect until October 1 (except for the payment of any alimony). Consulting a Virginia family lawyer will help educate you about the way the court system works in Virginia and the potential impact at the time of a divorce.
The bottom line is that although court forms are available online that will allow you to file for divorce yourself in Virginia, the consequences of filling out those forms incorrectly outweigh any savings you might achieve by filing your own case.