This article is a part of our Family Law 101 series.

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Separation Definition

Separation in Virginia means to live “separate and apart without any cohabitation and without interruption. After the separation period of either 6 months (without children) or one year (with children), you two can divorce.

What Is Separation in Virginia?

A cohabitating, married Virginia couple is assumed to provide various marital benefits for one another:

  • Financial support
  • Emotional help
  • Goal setting and planning
  • Practical problem solving
  • Pleasant surprises, gifts, and spontaneous moments
  • Peace of mind
  • Sexual pleasure
  • Help with activities of daily living

If you take all that away, two married people could co-exist under the same roof and still be separated. Separation in Virginia is the cessation of all the activities of married life — cohabitation — based on social norms. In Virginia legal parlance, “cohabitation” is the key word:

  • In Brennan v. Albertson the Virginia Court of Appeals found that two people (of any sex) can cohabitate without having a romantic or physically sexual relationship; the bond can simply be “analogous to marriage”
  • Living, eating, and socializing together over a length of time constitutes cohabitation

How to Separate Legally

To separate from your spouse, you need to end all the social norms of cohabitation:

  • No gifts, favors, or chores for one another
  • No shared meals
  • No entertainment together
  • No sexual or intimate contact between you two
  • No socializing together except for certain family events (children’s birthdays, holidays)
  • No financial support or intermingling of funds
  • No lengthy, intimate communication
  • No assistance with activities of daily living (dressing, cooking, eating, grooming, shopping, cleaning, housekeeping, and the like)

The Code of Virginia & Separation

The Code of Virginia section regarding separation is:

  • 20-91. Grounds for divorce from bond of matrimony; contents of decree

Since legal separation is not a legal concept in Virginia, this single section — indeed, a single sentence within the section — carries the entire legal burden:

  • Divorce may be granted “On the application of either party if and when they have lived separate and apart without any cohabitation and without interruption for one year.”

How to Prove Separation

You can prove separation by a notarized letter, signed by both spouses, stipulating the date of separation. You can also use evidence such as diary entries, calendars, and notices on social media. These are all needed well after the separation begins, as you pursue a divorce.

By far the easiest, most legally sound way to demonstrate separation before divorce is through a property settlement agreement. The agreement can have many names. An incomplete list includes:

  • Collaborative agreement
  • Custody, support and property agreement
  • Divorce agreement
  • Divorce settlement agreement
  • Marriage settlement agreement
  • Marital divorce agreement
  • Marital settlement agreement
  • Mediated agreement
  • Settlement agreement
  • Separation agreement
  • Separation and property settlement agreement

We are not trying to be ridiculous; you need to be prepared to recognize the document under whatever name an attorney uses. The agreement is a legally recognized marital contract that informs a Virginia Circuit Court of the date of separation and the couple’s agreed conditions for separation and divorce.

Divorce from Bed & Board

All states accept documentation of separation, including Virginia. In some states, married folks can get a legal separation, meaning they are recognized by a state court to be apart but still married. Virginia does not allow a court to sanction a separation.

An alternative to a “legal separation” in Virginia is a divorce from bed and board. The literal meaning of that type of divorce is that the two people no longer sleep together, have sex, or feed each other.

The court can recognize they are separate but still married. The reasons for a Virginia divorce from bed and board are brutal:

  • Cruelty
  • Reasonable apprehension of bodily hurt
  • Willful desertion or abandonment

One party must accuse the other of at least one of these behaviors, and the accused party must be found guilty. That is a stigma few people are eager to dispense or assume.

Still, divorce from bed and board is an alternative to both “legal separation” and a divorce from the bonds of matrimony, with very narrow guidelines as laid out in Virginia Code § 20-116:

In granting a divorce from bed and board, the court may decree that the parties be perpetually separated and protected in their persons and property. Such decree shall operate upon property thereafter acquired, and upon the personal rights and legal capacities of the parties, as a decree for a divorce from the bond of matrimony, except that neither party shall marry again during the life of the other.

Far easier than a divorce from bed and board is the creation of a separation agreement.

Separation Agreements

A certain do-it-yourself van rental company once had the unfortunate slogan, “Adventure in Moving.” Who wants an adventure when you are moving a refrigerator? You can think of separation and divorce as moving on with your life, and you hardly want that to be a spine-tingling adventure.

A separation agreement (also known as a property settlement agreement) is a plan, an agenda, and a roadmap to a happier, calmer life after divorce. Separation agreements are usually drafted by one of the two attorneys and then revised through negotiation until both spouses agree on all the terms.

Using a separation agreement leads to a smooth and uneventful separation period and a relatively inexpensive divorce, since a judge is being asked only to sign off on the marital agreement ending the marriage. It is a way to avoid costly courtroom time and conflict.

What to Include in a Separation Agreement

The five critical issues that must be presented to a judge in a property settlement agreement are intended to detangle two lives:

  1. Equitable property distribution — Splitting up all your property and debts is imperative. With property settlement, every item within a married household must be accounted for (valued and divided), from the house itself down to the smallest possession. That includes pets, paddle boats, paintings, and plants. If your marriage owns it, you must divide it.
  2. Child custody — If your marriage resulted in children, child custody must also be ironed out to the smallest detail, since every minute of a year has to be considered in reaching a balance of custody. Consider summer vacation from school, family functions, birthdays, traditional and nontraditional holidays, and emergencies.
  3. Child support — The custodial parent needs financial help with the kids. The custodial spouse usually receives child support payments from the noncustodial spouse.
  4. Parenting time — Both parents must stay in frequent, loving contact with the kids. Parenting time (visitation) is possibly the hardest part of a separation agreement, since it involves practical issues and emotional challenges. Many couples rely on software and phone apps to assist with parenting time scheduling.
  5. Spousal support — The lesser-earning spouse may need financial help to adjust to a post-divorce life. Spousal and child support are closely connected to property division since the family finances affect them. The lesser-earning spouse usually receives some spousal support for a specific purpose and duration.

For each aspect, every detail needs to be spelled out clearly, so no ambiguity can cause post-divorce confusion. The more detail you put into the property settlement agreement, the less conflict and fewer issues will crop up after the divorce.

When to Contact a Divorce Attorney

As soon as you begin contemplating a separation and divorce, you will greatly improve your life by contacting an experienced family law attorney. With an early consultation, you can learn the best ways to move ahead with separation and divorce in Virginia. You can also learn what to avoid, why the myth of “legal separation” is useless, and how best to keep a clear, calm head.

Your attorney will be in touch with your spouse’s attorney to develop a separation agreement. The two attorneys will provide useful, correct advice on how to separate, what to expect during the waiting period, and how to divorce efficiently and economically.

The Firm For Men has the expertise to guide any Virginia man through separation. Contact us today or telephone us at (757) 383-9184 to set up your initial consultation.