Establishing Date Of Separation In A Virginia Divorce


Posted on November 1st, 2010, by Matthew Smith in Divorce, Family Law. Comments Off

Establishing Date Of Separation In A Virginia DivorceUnfortunately, many people reach a point of no return in their marital relationship. Perhaps a spouse has been unfaithful or abusive, or maybe two people have simply drifted apart over time. Whatever the reason, you’ve made the decision that you need to turn the page and move on with your life. One of the first steps in the divorce process is the establishment of a date of separation. But why is it important, and how can you ensure that you’ve done it correctly?

A separation date may be crucial to your divorce case for a number of reasons. First, if you don’t have a fault basis for your complaint (adultery, cruelty, desertion, constructive desertion, etc.), then your separation date will determine when you can file for divorce. In Virginia, you must wait one year to file if you have children and/or in the absence of a marital settlement agreement, but you can file after only six months with no children and a marital settlement agreement in place. In some jurisdictions (such as Fairfax County), regardless of fault grounds, you will not be scheduled for an equitable distribution divorce trial until beyond the statutory time period.

Second, your date of separation will have an impact on the marital, separate or hybrid nature of financial accounts, retirement accounts, and other property. In general, with some exceptions, income earned, debt accrued, and items purchased post-separation (with post-separation funds) will be classified as separate property. Also, a court will often give credit to a payor party for post-separation spousal support payments, thereby reducing the post-divorce duration of such payments.

In other words, the sooner you can establish a date of separation, the more quickly you can turn the page on your marriage and the various entanglements that result therefrom. So what constitutes a defensible date of separation?

Virginia caselaw provides for a number of different indicia of a legal separation. One of the brightest lines is the entry into a “separation agreement,” signed by both parties, which unequivocally states that they separated on a certain date with no intention to reconcile. Alternatively, if one party vacates the marital home and informs her spouse of her intention to seek a divorce, this will also do the trick.

However, oftentimes, to benefit the children or out of economic necessity, separating parties will elect to remain under the same roof at first. As long as one party (1) vacates the marital bedroom, (2) notifies the other of her intention to seek a divorce, and (3) the parties cease having intercourse (although some caselaw suggests that infrequent liaisons are permissible), a date of separation can be established with both parties remaining in the marital home. In these circumstances, there are a number of additional factors that a court will consider to determine whether the parties are indeed separated:

  • Do they hold themselves out publicly (to family and friends) as separated?
  • Do they attend events or functions together (excluding functions involving their children)?
  • Do they take meals together or prepare meals for one another?
  • Do they share the same bathroom or closet?

As silly as some of these considerations may seem, they can be crucial in establishing a date of separation, which can have a significant impact on property division, the duration of spousal support, and the timing of your divorce. So take your toothbrush out of your spouse’s bathroom, and take this advice to heart when considering your separation date.

If you find yourself at the beginning of the divorce process, you should strongly consider enlisting the help of an attorney to learn more about how to protect yourself and your future. The divorce lawyers at Livesay & Myers, P.C. are experienced in guiding clients toward an equitable resolution to a very difficult period in their lives. Contact us today to schedule a consultation with an attorney in one of our three locations: Fredericksburg, Manassas and Fairfax.

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About 

Matthew Smith is a senior family lawyer in the Fairfax office of Livesay & Myers. He is the attorney in the firm most experienced in navigating the Fairfax County, Arlington and Alexandria family courts. An attorney since 2005, Mr. Smith has litigated every type of family law case in the courts of Northern Virginia, including high value equitable distribution cases, custody, support, and military divorce cases.



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