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Residing With Your Spouse During Separation

SeparationYou have made the difficult decision to separate from your spouse, but there are insufficient funds in the family budget to support two households. Perhaps it is unclear which party will permanently remain in the marital residence, and neither is willing to move out without having a financial agreement in place. For whatever reason, you find yourself separated from your spouse while living under the same roof. There are several issues to be aware of if you are contemplating living with your spouse during separation in Virginia.

Clients frequently ask whether time spent separated yet living under the same roof as their spouse counts toward the requisite separation period necessary for a no-fault divorce. In Virginia, spouses can obtain a no-fault divorce after six months of living separate and apart without any cohabitation and without interruption, if there are no minor children of the marriage and if the parties have entered into a property settlement agreement. If the parties have minor children, or if they have not entered into a property settlement agreement, the required separation time for a no-fault divorce is one year.

The Virginia Court of Appeals has held that spouses may live separate and apart under the same roof for purposes of this 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 Living Separate and Apart Under the Same Roof

There are many guidelines that spouses can follow in order to make living separate and apart under the same roof as smooth of a transition as possible. First and foremost, 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. The parties should stop having sex, and should sleep and keep their belongings in separate bedrooms (and use different bathrooms, ideally). They should stop holding themselves out as a married couple, both inside and outside the residence, which includes no longer wearing their wedding rings. The parties will need to tell family and friends of their separation. 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.

On a more basic level, each spouse should stop grocery shopping, cooking, cleaning, and doing laundry for the other spouse. The parties should no longer go to family functions, social events, or on vacations together. In addition, they should refrain from exchanging gifts on birthdays, anniversaries, or holidays. 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.

In Virginia, spouses are able to live separate and apart under the same roof without cohabitation for purposes of a no-fault divorce, but this is an issue that can easily become problematic. If you are facing a divorce and would like to live separate and apart under the same roof with your spouse, be sure to consult with an experienced family law attorney. Livesay & Myers, P.C. has a team of experienced family lawyers across offices in Fairfax, Ashburn, Manassas and Fredericksburg, representing clients across Northern Virginia. Contact us to schedule a consultation today.