The phrase, “legal separation” is a Virginia myth on par with the Richmond Vampire. Like the Vampire, it seems never to die, it changes over time, and it has a tiny kernel of truth at its core.
First of All, There’s No Such Thing
Nothing in Virginia law enshrines “legal separation” as a concept. In Virginia, you are either:
- Not married
Children, widows, widowers, and divorced adults all tidily fit into the second group. What most Virginia men do not realize is that separated adults fit into the first group. You cannot file for “legal separation” under Virginia law. Once married, you and your spouse are only “not married” once you divorce.
Having said that, we also need to point out that you can separate from your spouse, using a property settlement agreement. A property settlement agreement (aka separation agreement) is the blueprint, road map, and visitor’s guide to divorce, all rolled into one.
The Pros of Separation
Advantages to Virginia couples of separating before divorce connect mostly to reputation and virtuous living. You can only divorce without separating if:
- Your spouse is proven guilty in court of adultery, or guilty of sodomy or buggery outside of marriage
- Your spouse is convicted of a felony and ordered to serve a minimum of one year in jail
Those are Virginia’s fault grounds for divorce. You need not endure any separation period if she done you that kinda wrong. (Obviously, if you done her wrong, she has the same rights.)
Separation helps avoid stigmatizing either one of you. You have six months (with no children) or a year (with children) to live apart and get yourself together, emotionally and financially. You can pursue no-fault, uncontested divorce. Cool heads and happy hearts can prevail.
Separation gives both of you breathing space. You do not have to put up with your spouse’s dangerous or irritating habits, subject the children to seeing their parents fight, or wrestle over money. Your finances and living arrangements are separate and apart.
For many Virginia men, this time of separation helps them recover an inner peace and kinder attitude. Some men treat the time as a kind of extended working vacation, since the psychological load — of bearing up under a troubled marriage — is lifted.
In practical terms, separation allows one spouse to continue receiving health insurance under the other spouse’s plan. You can also file taxes jointly, preserving those tax benefits. And, being separated but still legally married can positively affect Social Security and military pension benefits.
Emotionally, being separated but not divorced gives you relatively painless re-entry into marriage, should you both decide you do not want to divorce.
Though Virginia does require a minimum waiting period of six months (no children) or a year, it does not require a maximum waiting period. You two can stay separated but not divorced for as long as you like. If, though, you have sex during your “waiting period,” the separation clock resets and you start over.
The Cons of Separation
Separating and only separating (without divorcing) has some drawbacks. If you want to marry someone else, you cannot do that (legally) until you divorce. Financially, you and your spouse may still be entangled in marital property (vacation home mortgage, primary residence mortgage, loans in both names, student loans).
A long separation can also give your spouse time to hide assets, bleed money from joint accounts, ruin your credit history, or deliberately lose a job and become the lesser wage earner. During a long separation, your spouse could move out of state or even to another country, making the subsequent divorce harder to move through the courts.
The longer some couples are separated without divorcing, the more strain they show in their communications, interactions, and dealings with their children. Separation is a kind of legal limbo, because you are legally still married but enjoying no benefits of marriage. You have the added expense of maintaining two homes, one for each of you.
If you two owned and operated a small business together, that business may suffer as your relationship begins anew. Some couples find the situation impossible and end up selling a profitable small business, just to avoid the daily interaction.
Emotionally, separation can take a toll on your nerves. You are waiting … waiting … waiting to get on with your life, to establish yourself firmly as a party of one. You also face loneliness, a smaller pool of income, and a new way of dealing with your children (if your marriage produced a brood).
Considering separation? Consider the professionals of The Firm For Men, your allies in Virginia family law. Contact us today or telephone our office, (757) 383-9184. We specialize in helping Virginia’s men navigate separation, divorce, and custody issues in the Commonwealth.