In-Home Separation in Virginia

SeparationVirginia law allows for no-fault divorce on the grounds of (a) living “separate and apart” for one year or (b) living separate and apart for six months with a separation agreement in place and no minor children.

But, what does it mean to live “separate and apart” for this purpose? While a separation usually means one party moving out of the marital residence, the Virginia Court of Appeals has held that spouses may live separate and apart under the same roof for purposes of their six- or twelve-month separation period.

In Bchara v. Bchara (2002), a wife found a videotape of her husband having sex with another woman. She then moved all of his belongings into another bedroom, and they stopped having sex. The wife also asked her husband repeatedly to move out of the house, thereby establishing her intent to separate. Further, she no longer deposited funds into the parties’ joint bank accounts, and the wife ceased attending church and other family functions with her husband. She had a corroborating witness visit the house once a week, who later testified that the parties were no longer living as a married couple. The husband argued that the parties were still cohabiting, as the wife continued to buy groceries, cook, and clean. However, the Court of Appeals found these facts alone were insufficient to prove that the parties were cohabiting.

As demonstrated by the case of Bchara, whether the parties are living separate and apart under the same roof is a fact-specific issue that requires the court to consider all of the circumstances before making a determination.

Although the Court of Appeals in Bchara found that the parties did, in fact, live separately while in the same residence, the case also illustrates that it is preferable for both parties to agree to this arrangement. If one party is in denial that the separation is occurring or disagrees with the date of separation, it adds another level of complexity to the case, which may lead to litigation.

Guidelines for In-Home Separation

There are several steps that spouses can follow in order to clearly establish that they are living separate and apart in the same home:

  1. Both parties need to be aware that at least one spouse has the intent to end the marriage, and this intent must remain throughout the separation. It is best to document this by stating the intention to permanently end the marriage (as of a certain date) in writing.
  2. The parties should stop having sex, and should sleep and keep their belongings in separate bedrooms (and use different bathrooms, ideally).
  3. They should stop holding themselves out as a married couple, both inside and outside the residence, which includes no longer wearing their wedding rings.
  4. The parties should tell family and friends of their separation.
  5. One of the parties must have a corroborating witness visit the residence on a regular basis, see that the parties are living separately, and be willing to attest to these facts under oath.
  6. Each spouse should stop grocery shopping, cooking, cleaning, and doing laundry for the other spouse.
  7. The parties should no longer go to family functions, social events, or on vacations together.
  8. They should also refrain from exchanging gifts on birthdays, anniversaries, or holidays.
  9. The parties should also establish separate bank accounts.

The purpose behind these suggestions is to ensure that the parties are no longer deriving benefits from living with their significant other, as would a married couple. For all intents and purposes, the parties should treat each other as roommates rather than spouses.

If you are attempting an in-home separation in Virginia, be sure to consult with an experienced family law attorney as early in the process as possible. Livesay & Myers, P.C. has a team of experienced family lawyers with five convenient office locations, representing clients across Northern Virginia. Contact us to schedule a consultation today.

See also: Guide to Separation in Virginia

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