by VA Family Law Firm

Separation AgreementsMay 5, 20210 comments

Separation Checklist for Virginia

If you are thinking about divorce, for whatever reason, you have probably done some research. You might know that in Virginia you must be separated for either 6 or12 months prior to being able to file for or obtain a divorce, depending on your circumstances. Since maintaining separate households is expensive, there has been an increase in “in-house separations”.

However, if done incorrectly, it may not count and it could also harm your case in court. We have compiled a separation checklist that lists some factors that a Court considers when determining whether parties are separate under the same roof, however it is important to note that there is no specific checklist in the Virginia Code.  Each situation is unique and we highly encourage you to speak to a separation lawyer before starting an “in-house separation”.

In-House Separation

What is it? Basically, couples contemplating divorce maintain a separation while still living under the same roof. This requires more than just sleeping in different beds. The couple must establish that they have lived separate and apart without any cohabitation under a single roof. This is difficult to do, but not impossible. You may wish to sign a separation agreement, but always consult an attorney first.

Note that Virginia Code 20-94 states that divorce for adultery, sodomy, or buggery will not be granted if the parties voluntarily cohabited after the knowledge of the fact of adultery, sodomy, or buggery.

If you plan to move forward with an in-house separation, you should strive to meet as many of the following as possible.

Separation Checklist

• Establish separate bedrooms.
• If possible, use separate bathrooms and closets as well.
• Establish, maintain, and demonstrate intent to permanently separate.
• Cease romantic or sexual intimacy and stop wearing wedding rings.
• Shop for your own food and prepare your own meals.
• Do not shop for your spouse.
• Do not use your spouse’s food or other purchases.
• Do not eat meals together (Holidays or children’s birthdays may be an exception)
• Do your own chores, clean your own space, and don’t do chores for your spouse.
• Establish separate checking accounts.
• Stop socializing as a couple. Don’t go to parties, movies, religious services, etc. together.
• Limit your interaction except as necessary to co-parent (Example, it may be appropriate to attend a school meeting together, but less appropriate to sit together at a child’s football game).
• Do not give gifts for birthdays, Christmas, anniversary, Valentine’s etc.
• Let your family and friends know that you are separated.
• Use separate entrances to the residence if possible.

 Witnesses to the Separation

Just as with traditional physical separations, in-house separation requires corroboration (note that effective July 1, 2021 corroboration by a third-party witness will no longer be necessary for a no-fault divorce). You need a third-party witness to come into the home and observe your separate living spaces and verify the in-house separation. In many jurisdictions the success of in-house separations depends on the level of corroboration presented to the court. A friend, relative, nanny, or maid who is present in the home for several hours, several times a week may prove necessary to confirm that there has been no cohabitation.

Separation Checklist for Virginia

If you are contemplating divorce but can’t afford to maintain two separate households, an in-house separation may be your only choice. Let’s make sure you do it right. Contact Grenadier, Duffett, Levi, Winkler & Rubin, PC today to speak to an attorney about your case.