If your marriage is on the rocks, you may be considering a divorce. The first step is separation. Separating from your spouse means that you no longer live together as a married couple. It is crucial to speak to a lawyer about your separation to ensure that you are protecting your rights.
In Virginia, unlike many states, there is no procedure to obtain a “legal separation.” Rather, Virginia Courts will grant a no-fault divorce if the parties have lived “separate and apart” for one year (or 6 months if there is a property settlement agreement resolving all issues and no minor children). It is important to establish a separation date for several reasons. It will determine when you can file for divorce in no fault cases. It will also impact how your financial accounts and assets will be divided by categorizing income, debt, and assets as post-separation property.
Marriages don’t always end suddenly. Sometimes, they just slowly burn out. Either way, the sooner you are separated, the faster you can work on finalizing the divorce. Having a lawyer during your separation can help you navigate this period and ensure that you are making the best decisions.[Related: Divorce Planning]
One way to establish the date of separation is by signing a separation agreement or property settlement agreement with your spouse. Both types of agreements can state the exact day you separated with no intention to reconcile.
Separation agreements establish how issues like spousal support, custody, child support, and marital assets and liabilities will be addressed. This agreement can be temporary, until a Judge can rule on the issues, or it can settle all the issues between you and your spouse. The more issues you are able to resolve by agreement, the easier and less expensive your divorce will be.
A separation agreement or property settlement agreement should be created with the help of your lawyer.
Announce Your Intentions
If you are ready for a divorce, you can establish your date of separation by announcing your intention to permanently end the marriage to your spouse. It is important to note that only one spouse has to have the intention that this separation is permanent. Spouses don’t have to agree to separate. If your spouse is reluctant to separate, you may want to document your intention to separate in writing.
Separation Within the Same Home
In some cases, separating spouses choose to remain in the same home. This could be due to economic necessity or for the benefit of their children. If this is the case for you, you can still establish a date of separation in Virginia if:
- One spouse notifies the other of an intention to seek divorce.
- One spouse vacates the marital bedroom, and the couple stops having sexual intercourse.
- You no longer hold yourselves out as married to friends, family, co-workers, etc.
In these situations, the court may need to consider additional factors to determine the date of separation, such as whether the couple shares a bathroom and closet, or whether the couple’s family and friends know they are separated. As above, to make the separation date clear, you may want to memorialize it in writing by sending an email to your spouse stating that you are separated, and that you intend to remain separated permanently.
Couples who are willing to work together to resolve issues and reach an agreement may choose to use divorce mediation rather than litigation.
Separation Lawyer in Reston
Divorce is never easy. Making the decision to pursue a divorce is difficult and emotional. We highly recommend that you seek the advice of an attorney to discuss your separation. Our expert attorneys can help you make the right decisions and take the right steps to establish your date of separation and pursue your divorce. Contact us today to get started!