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Separation in Virginia When Living Together

In order to get a divorce in Virginia, spouses must first separate for six months to one year depending on circumstances. But living in separate homes can present a real challenge to some spouses. In a COVID-19 environment, it may be preferable to keep a safety bubble for the children, finances may be prohibitive pending the division of assets, or both spouses may feel strongly that they want to remain in the marital home for some other reason. Virginia Circuit Courts will accept an “in-house” separation as long as the parties are careful to establish that they are, in fact, separated. Here are some key issues to keep in mind.

Separation in all but Residence

For the court to believe that spouses are genuinely separated while living under the same roof, they have to be clear and consistent in their separation. This means that they should not share a bedroom, wear wedding rings or have romantic relations. Their lives must be more like roommates than spouses – keeping separate schedules, not attending social events together, and trying to divide out expenses such as utilities and groceries. The parties should maintain separate finances – e.g. bank accounts – if they hadn’t before. Just like a roommate, separated spouses should no longer “take care” of one another, so no cooking, cleaning the other party’s space, and no joint laundry. Parties should minimize their socializing in the house and try to have different schedules for their time with their children.

Third-Party Confirmation

In addition to living separate lives, parties need to let their friends and family know that they are separated. Not only is the act of informing them an important indication that the in-home separation is taking place, it also provides potential witnesses who can verify that the parties are living separate lives. The Virginia Circuit Court will require at least one adult witness (who can even be an adult child) to testify to the separation. That person needs to have personal knowledge with ongoing contact (at a minimum monthly, preferably weekly) such that their observations reflect the current state of the parties’ separation.  

Separation on Paper

In order for the separation to be valid, it has to start from a specific date, and an excellent way to establish this date is to record it on paper through a separation agreement. That same document is an excellent place to reach an agreement about the rules of the separation, covering the issues listed above and any other indicators of separation. In-home separation is not going to be easy, so putting some specifics in writing will help define the terms of the separation as well as provide further evidence of the mutual intent of the parties to be separated.

Whatever the reason for a separation under the same roof, the parties need to be diligent about maintaining their separation and producing evidence of the same. It is a good idea to have the separation memorialized in a written agreement. Confer with one of the experienced attorneys at Reese Law to determine what steps are appropriate for your particular situation. If you are considering a separation from your spouse, contact us for a consultation today.

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