Separation 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, unlike many states, Virginia law does not have a procedure for obtaining a status of “legal separation” in these no-fault cases. Meaning, divorcing couples in Virginia usually go from being married, to separated (with or without a separation agreement), to divorced—with a court only getting involved at the divorce stage. There is not an interim stage where a Virginia court grants the parties the status of “legally separated.” The closest thing Virginia has to the type of legal separation granted by other states is something called a “divorce from bed and board,” which is limited to fault-based cases and very rarely granted in Virginia.
Living Separate and Apart
So, what does it mean to live “separate and apart” for purposes of a no-fault divorce on the ground of separation in Virginia? Caselaw provides for a number of different indicia of a “separation” for these purposes. While entering into a separation agreement is not required to live separate and apart, it certainly helps. Without a separation agreement in place, the parties can still “separate” for purposes of a no-fault divorce by (a) physically separating (which usually means one party moving out) with (b) at least one party having the intent that the separation would be permanent.
On the question of intent, one must look for 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. For more information, see Establishing Date of Separation in a Virginia Divorce.
The most common method of separation in Virginia is through use of a separation agreement. By use of such a document (also frequently referred to as a “marital settlement agreement” or “property settlement agreement”), a couple may agree to live separate and apart, and to divide their property and debts in a mutually acceptable way. Where the parties have minor children, they may also provide for child custody, visitation and support in their separation agreement. Finally, the parties may include various other provisions in their agreement, such as language providing for the payment of spousal support (alimony).
Separation agreements usually provide that any divorce of the parties will be on the no-fault ground of separation. With such an agreement in place, once the parties have lived separate and apart for the appropriate time, either party may then file for an uncontested divorce on the no-fault ground of separation.
One advantage of separation agreements is that they allow parties with no minor children to file for a no-fault divorce after only six months, as opposed to twelve months with no agreement. [Note, however that couples with minor children have to wait one year before filing, whether they have a separation agreement or not.] For this reason, even a couple with no joint property, debts or other issues to resolve might choose to enter into a separation agreement.
If you are considering a separation from your spouse, you may decide to hire a family law attorney to draft an agreement for you, to review an agreement proposed by your spouse, or to negotiate an agreement with your spouse’s attorney on your behalf. Whatever you do, make sure you never sign a separation agreement without at least reviewing it with an experienced family law attorney.
Desertion vs. Separation
How does one live “separate and apart” to qualify for a no-fault divorce, without being found guilty of willful desertion, which is a fault-based ground for divorce? Virginia courts distinguish desertion from separation by looking at the specific behavior of the parties. Courts have consistently found that one party moving out of the marital bedroom or even the marital residence does not by itself show that a desertion has occurred. Instead, a finding of desertion requires that one party has ceased performing their marital duties, which can include but are not limited to providing financial support or contributing to marital bills or debts, and providing emotional or physical support.
Separation, as distinguished from desertion, is separating from your spouse, either in the home or outside, while still operating under the rules and standards of the marriage, such as division of the marital obligations and duties. Usually, a separation and the terms of the separation are discussed and agreed, whereas a desertion is more of a unilateral action by one party, leaving the other party saddled with all the marital duties and obligations.
Ultimately, there is a thin line between desertion and separation under Virginia law. It is therefore important to discuss the specifics of your case with an experienced family law attorney before leaving your spouse.
Residing With Your Spouse During Separation
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 Living Separate and Apart Under the Same Roof
There are several steps that spouses can follow in order to clearly establish that they are living separate and apart under the same roof. 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 should 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.
Do You Need An Attorney for a Separation Agreement?
In an effort to save money, many people make the decision to sign a separation agreement that they purchased or downloaded from the internet, without first reviewing it with an attorney. The great danger with this approach is that, by cutting corners, you may not be cutting yourself a good deal. First, you may not know what you’re entitled to under Virginia law, so while you feel satisfied with the agreement you have reached with your spouse regarding various marital issues (for example, “I guess he or she can have the house”), that agreement could be extremely unfavorable to you when compared to what a judge might award you in court.
Second, a separation agreement drafted for you by an experienced family law attorney will typically include a variety of provisions protecting your interests under Virginia law. A generic online form agreement that is not state-specific, and not tailored to meet your individual needs, may leave you unprotected, and vulnerable to some very bad financial consequences.
Finally, another problem with signing a “do-it-yourself” separation agreement is that, without review by an experienced family law attorney, it may well not hold up in court. You may get along great with your soon-to-be-ex now, but relationships often deteriorate and disputes often arise post-separation. There may come a day when you need to enforce the provisions of your agreement regarding custody, visitation, support, property or debts in court. However, if those provisions were not properly worded, then you may be forced to spend significant time and money litigating those issues in court. In fact, you may well end up spending much more in legal fees later to “fix” issues created by a faulty separation agreement, than it would have cost you to simply have a good agreement drafted right from the start.
Nothing should ever replace the advice of a skilled family law attorney when it comes to separating and divorcing your spouse. Attempting to save a few hundred dollars up front can cost you thousands or tens of thousands of dollars in the long run. This advice is universally true: you should never sign a separation agreement without first reviewing it with an attorney.
Setting Aside Separation Agreements in Virginia
The harsh reality of Virginia law is that once a separation agreement has signed by both parties it is extremely difficult, if not impossible, to set aside.
There is a long-standing principle that people can make as good or as bad of a contract as they want. This is especially true in the case of separation agreements, which can be set aside in Virginia only on limited grounds—when they were entered into under “undue influence” or are “unconscionable.”
The difficulty of setting aside separation agreements in Virginia has been driven home in a number of appellate court decisions. In one case, the Virginia Court of Appeals upheld the enforceability of a separation agreement which provided for $10,000 in monthly spousal support to a woman whose (now ex) husband’s monthly income was $12,000. In overturning the trial court ruling which had set aside the agreement, the Court of Appeals held that there was no undue influence, even though the husband had signed the agreement as a precondition of reconciliation. Furthermore, the Court of Appeals found that the separation agreement was not unconscionable, despite the fact that the husband only made $12,000 a month, because he could make more money. Thus, the husband was held to the agreement he signed, and was forced to pay $10,000 a month in spousal support.
Many people seek out legal counsel with similar situations. They have signed something in the hopes of garnering trust with their spouse, with an eye toward a potential reconciliation. But what these people usually did not realize—until far too late—is that if the reconciliation fizzles and the parties permanently separate, then under Virginia law they will almost always be held to the terms of the agreement they signed.
Our Family Lawyers
Livesay & Myers, P.C. has a team of experienced family lawyers across five office locations: in Fairfax, Arlington, Leesburg, Manassas and Fredericksburg. Our attorneys have years of experience in assisting parties with separation and divorce, including the review, drafting and negotiation of separation agreements. If you are facing a separation or divorce in Northern Virginia, we can help. Be sure to read our client reviews, then examine the profiles of each of our attorneys to find the one who is the best fit for you.
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