All divorces in Virginia are based on legal grounds, or reasons for divorce – even those that are uncontested or considered no-fault. The legal ground for an uncontested divorce is separation of the parties. At least one party to the divorce must state to the court that the separation is intended to be permanent for the divorce to proceed.
A couple is required to be separated for at least six months (if there are no minor children of the marriage) or one year (with minor children) before seeking a divorce. Divorcing couples are expected to provide the court with a signed separation agreement before filing, including the date of separation. This guide considers the crucial issues around separation in Virginia, including tips to help you get the best outcomes.
How Separation Works in Practice
Your period of separation starts from the date of separation written in your separation agreement. This date is crucial in determining how long you have to be separated before divorce. The separation grounds include three crucial elements:
This is where one party moves out of the marital home, which indicates the intent to separate.
Virginia law allows spouses to live “separate and apart” under the same roof. It is very common that divorcing spouses cannot live in separate households for financial reasons or to coordinate childcare between working parents. Sometimes your lawyer may recommend that you remain in the home for strategic reasons.
This involves demonstrating that at least one of the parties intends the separation to be permanent and wants to end the marriage. The couple must separate their lives in every way possible. (There’s more below on how to do this.)
The party intending to end the marriage must also communicate this to the other party by text message, email, letter, or conversation. The separation agreement should document this to satisfy the court.
Tips For Managing the Separation Process From Start to Finish
An effective separation agreement with an established separation date will establish the no-fault aspect of the separation. Getting this process right means you have a better chance of expediting your divorce and reducing the likelihood of more litigation later. There are several ways you can optimize the separation process to ensure that your divorce proceeds smoothly, including:
1. Get Legal Help
Prepare a comprehensive separation agreement with the help of a skilled legal professional. These are also known as marital settlement agreements or property settlement agreements.
2. Clear Date of Separation
A set date of separation can prevent future litigation about the division of marital assets. Our attorneys can discuss with you Virginia law regarding division or further distribution of marital assets acquired after the date of separation. Establishing a date of separation is helpful in drawing a line dividing which possessions are marital property and which are yours (post-separation). It’s a crucial step to protect your financial interests during your divorce.
3. Communicate Intent to Separate
Clearly communicating your intent to permanently separate to the other party before leaving the marital home, and signing a separation agreement, can prevent any accusation of “desertion” or “willful abandonment.”
4. Establish the Separation
Make sure you establish intent to separate permanently, even if you’re living separately under the same roof. Ways to do this include:
- Not sharing a bedroom, engaging in sexual relations, sharing meals, going to church together, or wearing wedding rings.
- Living financially separate as much as possible. Start dividing your debts and assets before settling your estate. Continue to pay a mortgage as a couple if necessary (to prevent foreclosure), but ensure that your financial arrangements are clearly in the process of becoming separate.
- Advise your friends and family, so there is no confusion about your intent to separate.
Compose a letter to your spouse announcing your intent to separate and that you intend this separation to become permanent. Obtain legal advice about the appropriate date of separation before including it in this letter.
5. Don’t Self-Represent
Avoid using generic, non-state-specific separation agreements you found online, because they may not hold up in court. A contract that fails to address your specific needs post-divorce may leave you financially unprotected. The money you think you’re saving may end up costing you a lot more in the long run, including the cost of litigating the financial losses incurred from a poorly drafted DIY agreement. Finding an experienced divorce specialist to help is money well spent.
6. Separation Agreements Are Binding
Don’t expect that your separation agreement can be changed or “set aside” later. Virginia law is specific about the binding nature of these contracts, which courts consider to be entered into willingly by both parties. A court would only alter your agreement when given proof that one of the parties entered the agreement under some form of duress. This is highly unlikely.
7. Be Careful About Dating
Dating while separated can complicate the process. Consider including a non-interference provision into your separation agreement if you intend to date. This provision means you’re free to live separate and apart before the divorce is finalized. However, a non-interference clause does not mean that you can’t be accused of adultery while dating, which is still technically a crime in Virginia and could be grounds to contest the divorce.
Following these tips and using a well-crafted separation agreement are the first steps toward a quick, easy uncontested divorce. Sound legal advice can make the process airtight and ensure a smooth transition to the next part of your life.
Contact Our Skilled Divorce Specialists Today
Following the rules for being separated before divorce in Virginia and preparing a separation agreement gives you a better chance of expediting the ending of your marriage and avoiding more litigation. The team at the Law Office of Michael Ephraim has over 25 years of experience helping thousands of Virginia couples finalize uncontested divorces.
Our experienced attorneys can get you a fast, low-cost divorce with no court appearance required. You can contact us today to talk to a trusted legal specialist who can make sense of this emotional process.