Legal Separation in Virginia
A question that is often posed by persons seeking to separate from their spouse and eventually divorce, is whether or not there is a status of legal separation under Virginia law. The short answer is no, unlike many other states, Virginia’s domestic relations laws do not have a status for legal separation in cases where neither party is at fault in ending the marriage. However, there are many steps you can take to protect yourself, your children, and your assets as you separate from your spouse and move towards divorce.
Legal separation is defined by Black’s Law Dictionary as “the term that applies to a court sanctioned agreement for a husband and wife that details their obligations while living apart.” Some states allow couples to petition the courts for a status of legal separation, regardless of what is causing the breakdown of the marriage. California is one of these states, which is why you often hear about celebrity legal separations. In those states, a case is opened when the parties decide to separate, and the courts are able to issue temporary orders for custody, support and property division while the parties work towards a final divorce agreement, or a final trial where the court will make final rulings as to those issues.
Domestic relations laws are state specific, therefore each state has a different procedure for legal separation. It is always best to consult with a local attorney before you begin the separation and divorce process to understand your rights in the state in which you live.
Separation in No-Fault Divorce Cases in Virginia
Virginia law allows for no-fault divorce on the grounds of (a) separation for one year or (b) separation for six months with a separation agreement in place and no minor children. However, Virginia does not have a procedure for obtaining a status of “legal separation” in these no-fault cases.
Which begs the question: how do you establish that you are separated for the requisite period for a no-fault divorce in Virginia, when Virginia law does not provide for a status of legal separation? The best way to determine when the one-year or six-month clock began running is to look at the date on which one of the parties decided that the marriage was over and communicated that fact to their spouse. In many cases there was a text message or an email, but often there was simply a conversation. If the separation date may be contested later, it is best to create a record by stating the intention to permanently end the marriage in writing. Proving the date of separation is a factual determination, so the courts will need some sort of evidence to corroborate the date of separation. See Establishing Date Of Separation In A Virginia Divorce.
Separation in Fault-Based Divorce Cases in Virginia
Virginia law also features several fault-based grounds for divorce—the most commonly used being desertion, adultery and cruelty. In fault-based divorce cases, Virginia allows the aggrieved party to file for either a divorce from bed and board (“a mensa et thoro”) or a divorce from the bond of matrimony (“a vinculo matrimonii”). With a divorce from bed and board, neither party can remarry or legally engage in sexual relationships with other people. A divorce from the bond of matrimony, by contrast, is an absolute and final divorce.
Once a complaint for divorce from bed and board or from the bond of matrimony has been filed, either party can file a motion for “pendente lite” relief, meaning temporary relief pending final resolution of the case. Under Virginia Code §20-103, these forms of relief include things like temporary child custody and visitation, temporary support (child or spousal), exclusive use of the marital residence, contributions to marital debts, and injunctions preventing harassment or dissipation (waste) of marital assets. Any pendente lite relief ordered by the court would typically remain in place until a final trial can be held, which is usually done one year or more after the date of separation.
So long as one year has passed from the date of separation by the time of the final hearing, Virginia courts will almost always grant an absolute divorce, as opposed to a divorce from bed and board. Technically, a court could hold a hearing and grant a divorce from bed and board before the one-year separation point—although that is very rarely done.
Any divorce from bed and board may be “merged” into a final divorce from the bond of matrimony after at least one year has passed from the date the parties originally separated.
When fault grounds exist, but neither party wishes to divorce, Virginia does have a statute that enables the court to order support and rule on custody and visitation matters—which is called “separate maintenance.” Under this statute, the courts have the same authority as in divorce matters to decide spousal and child support, and to make final orders on custody and visitation, but cannot divide the property of the parties. If property is an issue in your case, separate maintenance is not the most effective way to go. Some couples choose this method when, for religious or moral reasons, they do not want to divorce, but need assistance from the courts to determine support and custody matters.
Relief in Juvenile Courts
In Virginia, all of the above forms of relief are granted by circuit courts. However, Virginia juvenile and domestic relations district courts (“J&DR courts”) can also issue orders related to spousal and child support, custody, and visitation. There is no need to have fault grounds to seek relief from a J&DR court. However, J&DR court orders are appealable to circuit courts in Virginia. Also, jurisdiction can be removed from J&DR court to circuit court after one year has elapsed since the date of separation or either party decides to file for divorce on fault grounds. Many attorneys prefer to start in circuit court to avoid duplication of efforts and increased costs to their clients.
Finally, and most importantly, Virginia couples who want to separate and begin working towards divorce always have the option of negotiating a separation agreement. By use of such a document, parties may agree to live separate and apart, and resolve issues like property distribution, debt division, custody, visitation and support. By entering into a separation agreement, Virginia residents can thus achieve something very similar to the sort of “legal separation” that is granted by other states.
By working out a mutually acceptable separation agreement, most couples can save themselves a great deal of time and money. It is also much easier on the whole family emotionally, especially on children, when a couple can work together to come to an agreement instead of fighting it out in court.
Many attorneys can help couples negotiate a temporary separation agreement that provides the same relief the courts can grant in a pendente lite hearing. This agreement can be in place prior to the physical separation of the parties, and can help any children with the transition to two homes. When Mom and Dad are already in agreement over the custody and visitation schedule, the kids benefit by having a routine in place from the beginning. A temporary separation agreement is then the controlling document until the parties can come to a full and final property settlement agreement, or the parties have been separated one year and can file for a no-fault divorce—and ask the court to resolve their outstanding issues.
Keep in mind that a properly-worded temporary agreement will not prejudice either party when determining a final resolution. Each party should still have the ability to seek different terms, either in the full and final agreement, or from the court in the final divorce hearing.
As you begin the process of separation and divorce, it is always best to meet with a family law attorney who can help you evaluate which options are best for you and your family. Each case is different, and an experienced family lawyer can help you find the best path toward accomplishing your goals. The family law attorneys at Livesay & Myers have years of experience with making this difficult process as easy as possible. If you are facing a divorce in Northern Virginia, contact us to schedule a consultation today.