You and your spouse are considering ending your marriage through a no-fault divorce. But in Virginia, seeking a no-fault divorce requires spouses to separate for a period of time first. This means that while you’re apart, you are still legally married and still subject to everything your spouse does, and vice versa.
In Virginia, a period of separation has a few different purposes in a no-fault divorce:
- It establishes legal grounds for a no-fault divorce.
- It shows intent to end the marriage.
- It starts the clock on the divorce timeline.
At Melone Hatley, P.C., our experienced family law attorneys are here to guide you through the separation period, diligently protecting your finances, your future, and your family. If you are considering a divorce in Virginia, let us help.
1. Virginia Doesn’t Recognize the Concept of Legal Separation
Unlike many other states, Virginia doesn’t recognize legal separation.
Legal separation in other states allows the courts to be involved early in the process, making decisions about child support and spousal support, child custody and visitation, asset and debt division, and who can stay in the marital home. These are often the same terms that would be ordered in a divorce, except the couple remains married until their divorce is final, with their rights and responsibilities clearly defined and enforceable by law until their divorce is final.
Unfortunately, spouses who don’t have benefit of legal separation can face some significant risks, such as
- No clarity on property and finances – It may be unclear who is responsible for paying the bills. One spouse could rack up debt, empty joint accounts, or sell or misuse marital property.
- If children are involved, not having an agreement in writing can result in confusion over custody and visitation, one parent withholding the child from the other, or disagreements over decision-making rights.
- Support obligations are vague – In the absence of a written agreement, there’s no enforcement mechanism for spousal or child support. One spouse could stop contributing financially, leaving the other in a vulnerable position.
- Ongoing liability — When spouses are legally married and not protected by an agreement, they could still be liable for each other’s debts, medical bills, and legal issues, or at risk if one spouse fails to pay taxes or violates contracts in both their names.
- No clear definition of the date of separation. In Virginia and other states, the date of separation can impact when a couple is eligible for divorce, what is considered marital and separation property, and the calculation of support and asset division.
Even though there is no legal separation status in Virginia, Virginia couples can and should create a written separation agreement to protect their rights during this stage. While it is not a court order, it is a legal contract and is enforceable like any other legal contract.
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2. Separation is Required for a No-Fault Divorce in Virginia
In Virginia, separation isn’t just taking a pause in your relationship before you make more formal decisions. Separation is a legal requirement for a no-fault divorce. Before you can even begin the formal process of filing for a no-fault divorce, you’ll need to have lived “separate and apart” from your spouse for a period of time. How long will depend on your situation.
- If you and your spouse have children under 18, you must live separately for a full year before you can file for a no-fault divorce.
- If you and your spouse don’t have minor children and have already reached a written separation agreement, you may be eligible to file after six months of separation.
In other words, separation isn’t optional – it’s the only grounds to seek a no-fault divorce in Virginia.
3. What Does Living “Separate and Apart” Mean?
If you’re pursuing a no-fault divorce in Virginia, you will need to show that you and your spouse have been living separate and apart, both physically and with the intent to end your marriage. This is a two-part requirement to qualify for a no-fault divorce.
Physical Separation
In most situations, physical separation means that one spouse has moved out of the shared home. However, Virginia law does allow couples to remain under the same roof and still be considered separated, provided they meet certain conditions. This arrangement is referred to as in-home separation and requires separated spouses to live independently within the same household – no shared meals, chores, or marital behavior.
Intent to Permanently Separate
It’s not enough to live apart. One spouse must also clearly intend for the separation to be permanent, and that intent must be communicated to the other. This could happen through a conversation, an email, text, or – ideally – a written statement that confirms the decision to end the marriage as of a specific date.
Why Does This Matter?
The date of a separation plays a critical role in a Virginia no-fault divorce. It determines when you can file for divorce and can also affect issues like property division and support. Because of this, you will need proof of when your separation began, especially if your spouse disputes it.
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4. Separation vs. Desertion in Virginia: What’s the Difference?
In Virginia, there’s a fine distinction between separating from your spouse and abandoning the marriage. If you’re planning to pursue a no-fault divorce, it’s crucial to avoid actions that could be misinterpreted as willful desertion, which is a fault-based ground for divorce. How do you live “separate and apart” without being accused of desertion?
What Counts as Desertion?
Desertion isn’t just about physically leaving the marital home or bedroom. Virginia courts look deeper into this, specifically at whether a spouse has stopped fulfilling their marital duties, such as
- Withdrawing financial support
- Refusing to contribute to household bills or shared debts
- Cutting off emotional and physical support entirely without agreement
In short, desertion is usually a one-sided abrupt decision, where one spouse leaves or withdraws without discussion or regard for the impact on the other.
What Makes Separation Different?
Separation, on the other hand, can be agreed upon by both spouses and doesn’t mean walking away from marital responsibilities. You can be separated while still acting in good faith, such as maintaining your financial obligations, parenting responsibilities, and other marital duties, even if you’re not sharing a bedroom or emotional bond.
Why a Separation Agreement Matters
Because the difference between desertion and separation can come down to subtle details, the safest way to protect yourself is to put the terms of your separation in writing. A well-drafted separation agreement not only clarifies the date and terms of your separation, but it also outlines responsibilities like childcare, support, and finances. This helps avoid misunderstandings down the line.
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5. Limitations of a Separation Agreement
While separation agreements are one of the most effective tools to managing your separation, they aren’t fool proof.
First, a separation agreement is just an agreement, meaning it’s a voluntary contract between spouses. This means both parties have to agree and sign it for it to be valid. If one spouse refuses to sign it, you will need to complete the full 12-month separation agreement period before you can file for a no-fault divorce in Virginia.
It’s also worth noting that a separation agreement does not make you “legally separated.” Even with the agreement in place, you’re still legally married until the court grants you a divorce. And while a separation agreement is legally binding as a contract, it does not carry the weight of a court order. It can only be enforced as a contract unless and until it has been formally incorporated into a divorce decree or court order.
Are You Ready to Take the Next Step?
Navigating a separation in Virginia can be complex, especially when there is no formal process for legal separation. But for most couples, it’s worth it. It is the fastest, most cost-effective way to resolve issues and spare you from a long, expense court battle. A well-crafted separation agreement can protect your rights and lay the groundwork for a smoother divorce, but it’s not something you should navigate alone.
At Melone Hatley, P.C., our experienced family law attorneys are here to guide you through each step and help you protect your future. Call us today at (800) 479-8124 or contact us through our website contact form to schedule a confidential consultation with one of our Client Services Coordinators.
Schedule a call with one of our client services coordinators today.
