Legal separation allows couples to live separate lives while still being legally married. While separated, they can work out things like finances, child custody, and support — all without actually getting divorced. But how does this work in Virginia?
Unlike some states, Virginia doesn’t have a formal legal separation process. Instead, the state focuses on the idea of a couple “living separate and apart” as the first step toward a no-fault divorce. In Virginia, this separation period is required before a divorce can be granted.
So, what do you need to know about Virginia legal separation laws? This article is here to help clarify Virginia’s approach to separation and the legal options available to couples who are considering this path.
Living “Separate and Apart” in Virginia
In Virginia, the period of time you and your spouse live “separate and apart” is an important consideration when it comes to divorce.
What does “separate and apart” mean?
To be considered legally separated in Virginia, you and your spouse must live in separate residences. You can’t be living under the same roof, even in different bedrooms.
Beyond physical separation, you both must intend to permanently end the marriage. It’s a good idea to document that intent in writing, in case there’s a disagreement down the road.
How does separation affect divorce?
Living apart for a certain length of time is a necessary step toward getting a no-fault divorce in Virginia. The length of time depends on your circumstances.
If you and your spouse have a separation agreement in place and you have no minor children, you can file for divorce after six months of separation. If you have minor children or you don’t have a separation agreement, you must be separated for at least one year before you can file for divorce.
The date you and your spouse separated is a critical factor in determining when you’re eligible to file for divorce, so it’s important to keep good records.
Separation Agreements in Virginia
One of the most important aspects of legally separating in Virginia is the creation of a separation agreement. Here’s what you should know.
Purpose and Benefits of Separation Agreements
A separation agreement is a contract between you and your spouse that spells out how you’ll resolve key issues like:
- Dividing property
- Spousal support
- Child custody and visitation
- Child support
Going through a separation can be stressful, but a separation agreement can make things easier. Here are some of the benefits:
- You can settle issues outside of court.
- You have more say over the outcome.
- It can speed up the divorce process.
Key Provisions and Considerations
To avoid future arguments, your agreement should cover all major marital issues.
It should also include “boilerplate provisions,” which are standard clauses that ensure the agreement can be enforced in court. These clauses cover things like what state’s laws govern the agreement, whether one part of the agreement can be separated from the rest, and whether this agreement is the final word.
It’s important to know that some provisions simply can’t be enforced, like clauses that go against public policy. For example, you can’t unduly restrict a parent’s rights or get rid of child support obligations altogether.
Enforceability and Setting Aside Agreements
Since separation agreements are contracts, Virginia courts will generally enforce them. However, there are a few times when a separation agreement might be set aside.
It’s difficult, but a judge may set aside a separation agreement if there’s evidence of:
- Undue influence
- Unconscionability (the agreement is extremely unfair)
- Fraud
Separate Maintenance in Virginia
Virginia courts can order one spouse to support the other while they’re living apart but still married. This is called “separate maintenance.” It’s different from alimony, which is part of a divorce settlement.
People might seek separate maintenance if:
- They have moral or religious objections to divorce.
- They want to stay on their spouse’s health insurance.
To get a separate maintenance order, you have to show the court that:
- You and your spouse are living apart.
- You need financial support from your spouse.
- Your spouse has the means to support you.
Dating while separated and other considerations
Dating while separated
It’s not against the law to date while you’re separated from your spouse in Virginia. However, that doesn’t mean it’s without consequences.
In Virginia, adultery is one of the grounds for a fault-based divorce. And depending on the circumstances, dating could also affect decisions about child custody and visitation.
Desertion vs. separation
Desertion, sometimes also called abandonment, is very different from separation under Virginia law. Desertion happens when one spouse stops fulfilling marital duties with the intention of ending the marriage.
Like adultery, desertion can be grounds for a fault-based divorce in Virginia.
Impact of fault on separation agreements
Adultery or other marital misconduct can affect how a separation agreement is negotiated and whether it can be enforced later. When it comes to deciding on spousal support or how property will be divided, Virginia courts may also take marital fault into account.
Why you should hire a Virginia divorce attorney
Separation and divorce are complicated, and nothing can replace the expertise of a skilled family law attorney. They can offer advice and guidance on separation and divorce procedures, as well as:
- Assistance with writing and negotiating separation agreements.
- Representation in court for separate maintenance or divorce proceedings.
When choosing a lawyer, consider these factors:
- Experience: Make sure they know Virginia family law inside and out.
- Reputation: Read testimonials and reviews to see what other clients say.
- Communication: Choose someone who communicates clearly and makes you feel comfortable. Divorce is hard enough without feeling like you can’t talk to your lawyer!
Conclusion
In Virginia, there’s no such thing as a formal legal separation. Instead, the focus is on whether you and your spouse are “living separate and apart,” which can impact when you can file for divorce and under what grounds. A well-written separation agreement is essential to resolving important issues like property division, spousal support, and child custody during this time.
Given the complexities of Virginia’s divorce laws, it’s crucial to seek legal advice from a qualified Virginia divorce attorney. An attorney can help you understand your rights and obligations, protect your interests during the separation period, and guide you through the divorce process, if that’s your ultimate goal.
Navigating separation is never easy, but with informed decision-making and expert legal guidance, you can protect your future and your family’s well-being.