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Separate Maintenance in Virginia

SupportVirginia law allows a married person who is separated from their spouse to file a petition for “separate maintenance.” Separate maintenance is distinct from spousal support, and may be an attractive option to individuals who require support from their spouse but who do not want or cannot yet file for a divorce.

Separate maintenance initiated as a common-law remedy. It was developed to provide an equitable remedy when there was not an adequate legal remedy. Black’s Law dictionary defines separate maintenance as “money paid by one married person to another for support if they are no longer living together as husband and wife.” At common law in Virginia, there were essentially four elements to a case for separate maintenance: (1) the party from whom support is sought must be at fault, (2) the party seeking support and maintenance must be without fault, (3) the parties must be living separate and apart, and (4) the parties must be married.

Under those first two elements, “fault” historically played a central role in separate maintenance actions. But what is “fault” in this context? Desertion, adultery, cruelty and constructive desertion are all fault-based grounds for divorce in Virginia. There is significant statutory guidance and case law defining what is required in order to file for divorce on each of these grounds. Generally speaking though:

  • desertion is when one party abandons the other;
  • adultery is when one spouse has sexual relations or commits sodomy with a person other than his or her spouse; and
  • cruelty and constructive desertion are when a spouse has committed physical acts of violence against the other spouse or has committed such offenses against the other spouse that are so heinous as to render the marriage intolerable. Mere insults and vulgar language may not alone be sufficient basis for a claim of cruelty or constructive desertion.

Is Fault Still Required for Separate Maintenance? In 1994, the General Assembly added separate maintenance to Virginia Code Section §20-107.1, the primary statute governing spousal support in Virginia. By doing so, arguably, the General Assembly may have either softened or eliminated the need to prove the fault elements in a separate maintenance case. § 20-107.1(B) provides that “no permanent maintenance and support shall be awarded from a spouse if there exists in such spouse’s favor” one of the fault-based grounds for divorce in Virginia. But it then goes on to provide:

However, the court may make such an award notwithstanding the existence of such ground if the court determines from clear and convincing evidence, that a denial of support and maintenance would constitute a manifest injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties.

It would seem that under this language, for example, a spouse who committed adultery is not absolutely barred from receiving separate maintenance. Rather, that party may still receive separate maintenance, if denial of support would result in a “manifest injustice,” based on (1) the relative finances of the parties and (2) the relative degrees of “fault” of the parties. It is best though, to understand the significance that fault has historically played in separate maintenance actions.

Nevertheless, even if the requirement to prove fault to obtain separate maintenance has been softened or eliminated, the remaining two elements are still very much necessary to prove a separate maintenance action: the parties must be married, and they must be living separate and apart.

Living separate and apart does not necessarily mean that the parties are living in separate homes. In Jamison v. Jamison, 3 Va App. 644 (1987) the Virginia Court of Appeals found that a husband was entitled to a divorce based on the grounds of desertion even though the parties remained in the same home. For more information, see Residing With Your Spouse During Separation.

Why Choose Separate Maintenance? If you are filing for divorce, you could simply ask the court to award you spousal support as part of that case. But, maybe you have not yet formed the intent to permanently end your marriage. Maybe you do not want to pursue a divorce or permanently end your marriage. Maybe you do not have sufficient grounds to file for divorce, but you require financial support from your spouse. If you and your spouse are living separate and apart, you might choose to file for temporary spousal support in juvenile and domestic relations district court. Alternatively, if your particular facts meet the criteria, you may consider filing a separate maintenance action in circuit court.

What is the Effect of Reconciliation on a Separate Maintenance Action? If the action has not yet been filed with the court, theoretically, there would need to be a subsequent separation before a separate maintenance action could be filed. However, consider the unusual situation where an action has already been filed and then the parties reconcile. Arguably, the subsequent reconciliation terminates the separate maintenance action at that time.

Separate maintenance is evolving but is still very much a viable option for a party to consider in determining how they want to proceed when faced with the breaking down of a marital relationship. If you have questions about separate maintenance or spousal support, be sure to consult with an experienced family law attorney in your jurisdiction. The family lawyers at Livesay & Myers, P.C. handle separation and divorce cases across Northern Virginia. Contact us to schedule a consultation today.