How Do I Separate From My Spouse in Virginia?

So you’ve made the difficult decision – the relationship is not working, and you and your spouse need to part ways. What’s first – do you file for divorce? How do you get separated? For clients already facing a difficult time, figuring out the legal system and it’s requirements can be overwhelming.

Starting a Separation

Virginia defines separation as having two elements: first, the spouses must start sleeping separately, and second, one spouse must have the intent that the separation be permanent. In some cases, it can be unclear when the separation started. Frequently, spouses may start a separation only to reconcile and then separate again. Deciding that a separation is “final” is an essential element of the case.

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Separation Agreement

Signing a separation agreement helps show the date the parties’ separated; but is not necessary in order to initiate a separation. Frequently, we have clients that want to hurry and sign an agreement so they can “begin” their separation. However, there is no requirement to sign anything in order to begin a marital separation. If your spouse has presented you with an agreement, make sure you take the time to review it and get professional advice before signing anything.

Why Does it Matter?

In order to file for divorce based on separation, you must have been separated for the required time period. Spouses with no minor children and a signed agreement can initiate a divorce in Virginia after 6 months of separation. Couples with minor children or without a signed agreement must have been separated for one year before they can file for divorce.

For the court to determine the length of the marriage, property obligations, support obligations, and valuations, a separation date will need to be established. When the court divides property including real estate, retirement accounts, and investments, it will review the value of the asset on the date of marriage compared to the value on the date of separation. Each party is entitled to the marital share of the increase in value over the course of the marriage.

With debt accounts, the court will want the same information. No matter whether the account is held in one or both spouses names, any debt incurred during the marriage is presumed to be marital.

The length of the marriage is an essential factor in determining whether and how long spousal support will be paid following a divorce.

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What if We Don’t Agree?

The court will require evidence in order to determine the date the parties separated. In addition to the sleeping arrangements and party’s intent, the court may consider:

1. Whether the parties continued to act as a family unit – did they go on vacation together? Did they attend events, have parties, go out to dinner, and otherwise hold themselves out as a family unit?
2. Did the parties share meals together at home? Were the spouses performing chores for one another?
3. Did the parties separate financially? Or did they continue sharing a joint bank account and paying expenses as though they were a family unit?
4. Did one party inform the other of an intent to separate?

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What do I do now?

If you’ve decided to separate from your spouse; it’s time to get counsel. Getting advice on the next steps can help you avoid a critical mistake and ensure your rights are protected. The top-rated attorneys at Melone Hatley, P.C. are here to help! Melone Hatley, P.C. is a family and estate firm serving Virginia Beach and Northern Virginia. Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients.

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