Your typical Virginia bar-room lawyer will have plenty of free advice on “legal separation,” despite the fact that such a thing does not exist in Virginia. The phrase does not even appear in the vaunted Code of Virginia. In this meme-dominated age, California celebrity often eclipses actual facts, and in California, people can obtain a “legal separation.” Not so in Virginia. You are either unmarried, married, or divorced. Though the “law firm” of Pilsner, Porter, and Stout may say otherwise, trust us (actual, you know, Virginia divorce lawyers) when we say, what you two buy, you two own.
“Legal” Separation in Virginia
You and your wife can separate in several ways:
- Separate but still live under the same roof
- Separate with one of you moving out
- Separate but you take turns returning to the family home to be with your children
- Separate with one of you moving out of state
Virginia is fine with all of those choices. As long as you two abide by some legal definitions of “separated,” you can keep just about any living arrangements you want. Separation under Code of Virginia relates to the cessation of normal marital activities. Yes, what you’re thinking, but more:
- No longer buy each other anything
- Do no domestic chores for each other — No cooking, cleaning, buying groceries, picking up dry cleaning, signing for delivered packages, taking the spouse’s dog to the veterinarian
- Only appear together at family functions benefiting your children — school productions, birthday parties, family reunions, holidays
- Share nothing — no toiletries, closet, cupboard or refrigerator
- And, you know, no more of what you were thinking (psst — get busy; bone; roast the broomstick)
You two should agree on a specific date of your separation, because that starts the divorce clock. Six months (with no children) or a year later, you can proceed to the divorce itself. If you think the divorce will be contested — she does not agree, and will do more than enlist the fun-loving firm of Bitter, Malt & Bock to challenge the divorce — you must notify her that you consider yourself separated from her. You need to establish a date of separation, even if she does not agree to it.
Drafting the Separation Agreement
If she is not contesting the separation and subsequent divorce, you and your attorney should draft a separation agreement. This will spell out exactly when you and your wife agreed to a separation and what will happen to all marital property. The separation agreement also helps establish the three types of property affected in the divorce:
- Separate property
- Marital property
- Hybrid property
From the moment you announce a separation, you are on a pathway to divorce. Buy nothing in both your names. Close joint accounts of all kinds (credit cards, bank accounts, retirement funds).
Unfortunately, if you are likely to head toward a contested divorce, anything you buy during your separation can be fair game for her attorney as part of property settlement.
You bought a car in your name from an account you opened after announcing the separation? Good for you — where did the money come from that opened the account? If you took money from a joint account to fund the car, then her attorney can draw a bright line from that marital property (the joint account) to the car, making it part of an equitable distribution in the divorce.
If you did not transfer money from a joint account to start your new nest egg, but came by it in some other way, she cannot touch it or the car you bought. One path to that personal property is through a gift or award:
- If a relative gives money exclusively to you for a new-to-you car, that gift is considered separate property.
- If you won a new car on a game show, that new car is yours alone
- If a family member bequests you money or some other treasure in a will, naming you alone, that money is yours
- If you and your Virginia siblings hang onto a 1913 nickel through thick or thin and then auction it for more than $3 million, the money is yours and your siblings alone — although this is, admittedly, an oddly specific and narrowly defined circumstance
Make absolutely certain you know what is your separate property under Code of Virginia § 20-107.3 and what is marital property. Do not get greedy, either; she came to your marriage with material goods, perhaps some real estate, and maybe even a nice car. Those should remain hers after the divorce. This gives her incentive to keep her hands off your separate property, and makes division of hybrid property easier.
Call the Separation Attorneys for Men
Avoid an expensive mistake. Consult a family law attorney before buying that swell new car after you separate. A local telephone call to 757-383-9184 connects you, inexpensively and quickly, to legal counsel at The Firm For Men. No need to drive that new car over to our offices in Virginia Beach! If you prefer, you can contact us online. We can offer advice on the stages of divorce, beginning with separation and continuing through post-divorce issues like child support and visitation. Reach out today to schedule a consultation in our Virginia Beach office. We’re proud to serve all of Hampton Roads!