What Constitutes Legal Separation in Virginia?
In Virginia, legal separation can be either a stage of the divorce process or a goal that spouses agree upon to live separately. We’ll get into the mechanics of a legal separation later in this post, but let’s begin by establishing what legal separation means in Virginia. As a preliminary matter, it’s important to note that Virginia law does not make a technical distinction between separation and legal separation. Both refer to the dissolution of marital cohabitation.
To define the term further, legal separation is when a husband and wife live separately and apart with no intention of resuming their marital cohabitation with the intent of becoming divorced. In other words, a legal separation involves the termination of "marital cohabitation," which has been described in opinions of the Virginia Supreme Court as "the full and voluntary personal happiness of the two as a married couple…. Whether they live under the same roof or separate residences , we are concerned with the facts showing the true situation of their matrimonial relationship… ." McIlwain v. McIlwain, 213 Va. 602 (1972). (Note that cohabitation has been held to mean more than just residence or living together. McIlwain, at 604.)
Once separation occurs the spouses may or may not agree on the following issues: Alimony, maintenance, support or spousal support, child custody and visitation, child support, financial settlement or property division, and liability for marital debts.
While Virginia does not have (or recognize) a "legal separation" per se, it does recognize the concept of separation for the purposes of obtaining a divorce, annulling or declaring a marriage void without a specific decree or order, performing a deed, executor’s or administrator’s bond, signing any instrument, avoiding divorce residency requirements, or any other statute which requires, specifically, separate living arrangements.
Benefits of Getting a Legal Separation in VA
For some couples, filing for legal separation may be the better option than divorce. The separation will allow the couple to determine if a divorce is in their best interest and provide time to work out some of the arrangements while still retaining the legal titles of "husband and wife." Other advantages include:
Maintaining Benefits
A legal separation allows for one spouse to maintain certain benefits such as health insurance. Although some insurance providers allow the other spouse to keep coverage while living apart, it is not required. Therefore, if you have major medical needs that will impact your healthcare costs, be sure that you have a firm understanding of your insurance benefits and options before deciding to divorce.
Religious Beliefs
Some religious denominations do not allow for divorce, so a legal separation may be required. A legal separation provides some of the similar benefits of divorce but does not eliminate the title of "husband and wife." It allows some time to see if the marital relationship can be repaired or reconciled.
Possibility for Reconciliation
While you might not think that you want to get back together after being separated from the person you thought was your soulmate, a legal separation might offer the time to truly figure out what you want. If you and your spouse genuinely believe that there is a possibility of reconciliation, then a legal separation might be the best option for both of you.
Keep in mind that while you are legally separated, the laws regarding spousal support, division of property, and custody and visitation still apply. If at any time, you decide that you were wrong about wanting to get back together, you can file for divorce.
How to Obtain a Legal Separation in Virginia
The first step in pursuing a legal separation in Virginia is to establish residency in the state. Under Virginia law, either spouse must have lived in the state for at least six months prior to filing for separation. This is an important requirement as your case must be filed in the appropriate Virginia circuit court.
The residency requirement also applies to those seeking a legal separation in a county that does not have its own district court. In these smaller counties, cases are filed in the circuit court for that locality. For example, in Westmoreland County, cases are filed in the Westmoreland County Circuit Court.
Once you have fulfilled the residency requirement obtain a certificate of divorce, which is issued by the court clerk. This form establishes that at least one of the spouses has met the residency requirement.
The next step is to apply for a divorce in the Virginia circuit court. Because there are no legal separation documents in Virginia, the person initiating the legal separation must file for divorce. Virginia does not have a separate legal separation process or recognized legal separation agreement.
Before filing for divorce, one needs to inform their spouse of your intent to proceed with the legal separation. This is often done through a spouse summons process, in which your spouse is served with a copy of the court documents. However, it is possible to file for divorce by acknowledging that you have already informed your spouse.
Once the court process has been initiated, there are various grounds for divorce in Virginia. These are no-fault, based on separation, and fault-based, which requires proof of misconduct including adultery, physical cruelty, or abandonment. The requirements for separation include:
Fault-based divorces can proceed immediately if you meet the requirements. No-fault divorces must meet the six-month requirement if the spouses have continued to live together during that period. Otherwise, the period may be reduced to a year if the couple is already separated, according to Virginia law.
Once you have filed, the court will request payment of related fees. After the fees have been paid, there will be a hearing before a judge. In most cases, the hearing can be made an uncontested divorce. If there are children involved, you must also attend a seminar for divorced parents. These seminars may be offered by your local circuit court or other organizations, as required under state law.
Effect of Separation Agreements Under the Virginia Code
In Virginia, unlike some states, there is no procedure for obtaining a legal separation. As explained below, however, the term has become widely used to describe certain arrangements between married couples. Because the term is not officially recognized by Virginia law, parties should think of "legal separation" as being more of an umbrella term that encompasses various arrangements.
When the term "legal separation" is used, it typically refers to one of two things: a separation agreement or a divorce from bed and board. A separation agreement is a contract signed by both spouses agreeing to certain terms related to their separation. It can be used by spouses to address a wide variety of arrangements related to their separation, including property division and even spousal support. In addition, separation agreements are frequently used to establish their respective rights concerning children, whether there are children of the marriage or of prior relationships.
Virginia provides for a Divorce from Bed and Board, which is a form of fault-based "legal separation" that may be granted for certain specified grounds, including cruelty, apprehension of bodily hurt, or desertion. Unlike a "divorce from the bond of marriage," which terminates the marriage and brings it to an end, a Divorce from Bed and Board is only the first step of a two part process. Following the Court granting a Divorce from Bed and Board, the parties are then eligible to file for a divorce from the bond of marriage upon one year of separation if there is no fault , or six months of separation if there was a mutual and full waiver of any claims of fault.
The Divorce from Bed and Board is rarely sought or granted because the Divorce from Bed and Board does not terminate the marriage. (Indeed, if a spouse separates from the other, and subsequently files for Divorce from Bed and Board, he or she is considered the party at fault for purposes of obtaining a no fault divorce one year later.) Once a Divorce from Bed and Board is granted, neither party is free to remarry. While there is technically a provision for obtaining the divorce from bed and board for other reasons, such as irreconcilable differences, the Court is unlikely to consider a separation agreement sufficient to obtain a Divorce from Bed and Board based on irreconcilable differences.
When a couple separates and they do not enter into a separation agreement, they may also decide to live separate and apart. The parties’ are each free to determine whether or not they wish to-date their "separated" spouse, and best to keep separate anything that is separate so that, come time for trial (or even when they decide to negotiate a settlement) there is less "equitable distribution" of the parties’ assets. A couple who separates may have no legal rights to one another, including any rights to seek support or alimony. While separated, each party’s income is rightfully theirs to use however they want.
Similar principles apply to a couple that files for divorce. From the time of filing until the time of trial or settlement, the parties’ rights to support (if any), alimony, and "equitable distribution" of the parties’ assets are once again theirs alone. During the pendency of the suit, neither party’s property becomes marital property.
Common Misconceptions about a Legal Separation in the Commonwealth
A common misconception about recently filed separation agreements in Virginia involves the false belief that the parties to such an agreement have lost certain legal rights or have waived certain legal obligations. In other words, just because you and your spouse signed a written separation agreement does not mean that either one of you has given up your right to claim spousal support from the other or has lost the right to ask a court for a protective order to be entered if such an order is necessary to safeguard your safety and well-being. Additionally, signing a separation agreement does not mean these rights cannot be later enforced, differently than if no separation agreement existed. The most common myth we see with separation agreements is that they are a permanent dissolution of rights and obligations rather than an enforceable contract that both spouses can live by or can come back to the table and renegotiate, subject only to the approval of a court.
Consult a Family Law Lawyer
Consulting with a Family Law Attorney
Legal separation is a legally-created status, and confusion about the role a family law attorney might have when it comes to legal separation abounds. Must I go to court for legal separation, or are there forms that can be filled out to achieve this? Should I replace my spouse on auto insurance policies? What will happen to the children? Can I live with a friend during legal separation? Should I obtain a legal separation agreement? How long will a legal separation last?
A family law attorney can help answer these and other questions. Even if you have no immediate intention of filing a court action, a family law attorney can help sort through issues and options. Many people are unaware that if they decide to start child support sooner rather than later, they may be able to recover support going back to the date of filing. Consulting a lawyer early can often save significant time and money down the road if litigation becomes necessary. Of course, some families are able to come to an amicable agreement, but many are not.
A legal separation agreement can memorialize an agreement spouses would like to make , whether or not a legal separation is sought. A family law attorney can help draft the separation agreement, as well as advise the client about remote-litigation if there is a desire to have the agreement in an enforceable form. Often, coming to an agreement is only part of the solution to marital problems. A family law attorney can help a spouse work through personal, social, vocational, or psychological issues that arise during marital difficulties.
Sometimes, one of the spouses has been the primary economic support for the family. This person may be earning much more than the other spouse and may be paying all or most of the expenses. If the supporting spouse spends the remaining income without any regard to the other spouse as a "punishment," it might be advisable for the other spouse to file for divorced to obtain temporary spousal support and a pendente lite order to establish what amounts will be paid to each party to secure a stable financial future.
If you are a spouse considering a legal separation, a family law attorney can be a useful ally in helping you fully understand the possible outcomes of your actions.