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Clients often ask “how can I legally separate from my spouse?” The answer in Virginia is quite simple. Once you start sleeping separately from your spouse with the intent that the separation remain permanent, you are considered “legally” separated. There is no court filing or written agreement required in order to initiate a separation in Virginia. In order to pursue a divorce based on separation, you will need to be separated for 6 months and have a written agreement if you have no minor children, or you will need to be separated for one year if you have minor children.
Time spent living under the same roof can count towards your separation period. The earliest you can initiate a divorce is either 6 months or 1 year from the beginning of the separation period, otherwise the court does not have jurisdiction to grant a divorce.
Often, parties cannot afford to move into new residences right away. If they have a joint mortgage or lease obligation, neither party may be able to afford to move out. This can mean a portion of separation is spent living in the same household.
If you are still living under the same roof, you want to make clear your intent to remain separated from your spouse. This means buying separate groceries, splitting your financial obligations, and not attending events together.
For any divorce case in Virginia, one party has to have been a resident for at least 6 months prior to filing the case. If the other spouse has no connection to Virginia, the court may not have jurisdiction to determine any property or support issues between the parties. A knowledgeable family law attorney can advise you on where jurisdiction is proper for your case.
If spouses are living in the same household during their divorce case, a judge may be hesitant to award spousal or child support. If both spouses are contributing to joint expenses such as the mortgage, lease, car payments, utilities, childcare costs, or others the court can consider those payments to offset a support obligation. If you are in need of financial support, it’s best to speak with an attorney who can review your situation in detail and advise you of your options.
Just like with support, most judges are hesitant about entering custody or visitation orders while the parties are still living together. If one spouse has plans to move out of the home, the court may enter an order regarding visitation once that spouse leaves. Otherwise, both parents have an equal right to the children during the course of their separation.
If you and your spouse are able to come to an agreement regarding financial and property division, custody, support, and other terms for your separation, it’s best to have a written agreement as soon as possible. Once you have the terms of your agreement in writing, you have the ability to have the court enforce the terms of the agreement against your spouse if necessary. It’s best to have an attorney write your separation agreement so you can be sure all terms are included and enforceable.
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