If you and your spouse have decided to pursue a no-fault divorce in Virginia, state law requires a mandatory separation period.
The length of time you must be separated will depend on whether or not you and your spouse have minor children. If you have minor children, you must fulfill a one-year mandatory separation period. This can be reduced to six months if you and your spouse do not have minor children provided you have entered into a separation agreement.
No-Fault or Fault-Based Divorce in Virginia
As the name implies, a no-fault divorce is one in which neither spouse must prove the other was at fault for the breakdown of their marriage. Conversely, in a fault-based divorce, one spouse must prove the other’s marital misconduct to be awarded a divorce.
While fault-based divorces do have their advantages in many cases, a no-fault divorce is typically less contentious, time-consuming, and costly to pursue. But unlike a divorce based on fault-based grounds, there is a required separation period to be eligible for filing for a no-fault divorce.
How does Virginia define separation, and what starts the clock on the required time period? At Melone Hatley, P.C., our experienced Newport News, Virginia family attorneys are here to answer your questions and provide compassionate support and guidance during your separation and throughout your divorce process.
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How Separation is Established in Newport News, Virginia
Unlike other states, there is no such legal status known as a legal separation in Virginia.
Instead, Virginia law requires that you and your spouse establish your separation by a clear and demonstrable decision to live “separate and apart” with the “intent of ending your marriage.” Basically, this means that you must stop cohabitating as a married couple with the express intention of pursuing a divorce. Once you do, the clock will begin on your required separation time.
Living “Separate and Apart”
The first component of establishing separation in Virginia is living “separate and apart.”
In most cases, one spouse will move out and you will no longer cohabitate as a married couple. However, there may be financial constraints that make it impossible for you to maintain two separate households. In this case, you may be able to fulfill your separation requirement by maintaining separate bedrooms, finances, and daily routines to show a clear separation of your lives. In this scenario, you and your spouse will keep your lives separate and function as roommates instead of married partners.
Demonstrating the “Intent to End Their Marriage”
In addition to maintaining separate living quarters and lives, you and your spouse must intend that your separation is for the primary purpose of ending your marriage. Actions that demonstrate this can include closing joint accounts and dividing your finances and belongings, notifying your friends and family of your intentions, and no longer presenting yourself to others as a married couple.
By fulfilling these separation requirements for the designated time period, you and your spouse will be able to proceed with a no-fault divorce.
Things to Consider When You Are Separating in Virginia
Even if you are living separately, you and your spouse are still married during a separation. Consequently, separation can require some legal and financial consideration and careful planning.
Division of Property and Assets
In preparation for a divorce, one of the primary considerations will be the division of your marital property. This is property you and your spouse acquired while you were married.
A separation will require you to take certain steps such as closing joint bank accounts, updating financial records, and deciding who will pay ongoing expenses during the separation and while your divorce is pending.
Child Custody, Visitation, and Child Support During the Separation
Child custody, visitation, and support can also be a challenge for you and your spouse if you have minor children. You and your spouse are legally responsible for your children’s physical, emotional, and financial care and well-being. You will want to establish clear arrangements regarding where your children will live, how visitation will work, and who will pay child support to ensure their financial well-being.
Spousal Support
Spousal support may also be necessary for you or your spouse during the separation if you are financially dependent on the other. Having clear terms for this support can prevent financial disputes between you as well as set expectations for post-divorce arrangements.
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The Benefits of Having a Comprehensive Separation Agreement
A separation agreement is a voluntary contract between spouses agreeing on how they will handle property division, child support and custody, and spousal support during their separation. The provisions of a separation agreement will remain in force until the final divorce decree is awarded.
If you and your spouse are separating in preparation for your divorce, having a separation agreement will
- Establish clear terms regarding your property division, debt allocation, child custody and support, and spousal support, avoiding misunderstandings and disputes
- Protect both party’s financial interests and earnings and outline financial responsibilities concerning household expenses, mortgage payments, and other recurring liabilities
- Provide stability and predictability for your children with consistent guidelines for custody, visitation, and support
- Support the filing for your no-fault divorce by establishing the date and proof of separation
- Allow you and your spouse to make decisions tailored to your own needs instead of relying on court decisions
- Provide a framework for resolving dispute should they arise
- Offer a smoother transition into your divorce if your separation agreement is incorporated into the final divorce decree
- Help preserve cooperation and civility between you and your spouse
- Minimize court involvement
- Be enforceable as a legally binding contract
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Temporary and Emergency Court Orders During Separation in Newport News, Virginia
During a separation, some situations may need to be addressed temporarily or urgently. In these cases, the court can issue temporary or emergency court orders to protect the rights or maintain a spouse’s or child’s safety until the matter is resolved.
Temporary or emergency orders may be required in situations concerning:
- Financial support needs – The court may award financial support to you as the dependent spouse or your children, ensuring you receive the financial resources you need while your divorce is pending.
- Child custody and visitation – The court can award temporary child custody and visitation to ensure the child’s relationship with both parents and stability until a more permanent arrangement is determined. In cases where a child’s safety or well-being is at immediate risk, a spouse can request an emergency court order to obtain full custody quickly, thereby protecting the child from potential harm.
- Use of marital assets and property – The court may restrict withdrawals or sales of assets to prevent a spouse from depleting joint assets or assign temporary responsibility for certain debts to a spouse to ensure they are making appropriate payments toward financial obligations. If there is a concern that a spouse is wasting or hiding assets, the court can issue a restraining order prohibiting financial actions without court approval.
- Healthcare benefits and health insurance – The court may order one or both of you to maintain any existing health insurance for the other spouse or your children, which can be especially critical if the spouse or child has special needs or requires continuous medical care and coverage.
- Protection from domestic violence or harassment – In cases involving domestic violence or harassment, the court may issue protective orders restricting contact between spouses and their affected children. The court may also grant a spouse the exclusive use of the marital property if there is a history of domestic disputes.
For a spouse to obtain temporary or emergency orders, a motion must be filed with the appropriate court and evidence provided to support the request. A hearing will be held, and a judge will determine whether to grant that spouse the requested relief.
What Happens if You Decide to Reconcile During Your Separation?
If you and your spouse decide to reconcile during your separation, there may be some legal and financial implications if your reconciliation is unsuccessful and you continue in the direction of a divorce. It is important to consult with a Newport News, Virginia separation attorney to ensure your rights are protected, particularly if you have already entered into a legally binding separation agreement.
A reconciliation, even temporarily, could potentially affect
- Your separation period, which would need to start over again
- Proof of continuous separation if you later file for a no-fault divorce
- Any existing separation agreement, which would not automatically be voided but could change if you change your mind and decide to pursue a divorce after all
- Require refiling of the divorce if your reconciliation is not successful
Why is it Important to Have Legal Guidance During a Separation Period?
When you and your spouse have separated in preparation for a no-fault divorce, you are still married, yet typically not living together or sharing a marital “life” with each other. You now have two households and sets of expenses to manage. You may be navigating the support and physical care of your children while navigating these two households. And you are facing 6 months to a year of living this way before you can even file for divorce.
The legal and financial logistics of separation can be confusing and lead to many misunderstandings and disputes without a separation agreement in place. What are your rights? Who is legally responsible for what?
Having the legal guidance of an experienced Newport News, Virginia family law attorney can be critical when navigating a separation.
- Having the advice and guidance of a Newport News, Virginia family law attorney ensures you understand your legal rights and responsibilities while separated. This can help you avoid making decisions that could harm your long-term interests.
- Your attorney can create a comprehensive, fair, and legally binding separation agreement that will provide structure and clarity for how you will navigate property division, debt responsibility, child support and custody, and spousal support until your divorce is final.
- An experienced family law attorney will help establish temporary custody and support arrangements that will protect your and your children’s financial stability during the separation.
- Your attorney will address any emergency situations that arise due to domestic violence or financial misconduct and help you obtain temporary court orders of protection to ensure you and your children are protected.
- A Newport News, Virginia family law attorney will help you prepare for your divorce and plan for your future needs.
A separation can leave spouses legally and financially exposed without a clear legal framework to rely upon. Getting legal guidance and creating a fair and enforceable separation agreement ensures you have agreed-upon structure, avoid pitfalls, and are legally protected until your divorce becomes final.
At Melone Hatley, P.C., our experienced Newport News, Virginia family law attorneys are here to protect your rights, no matter where you are in your divorce journey. We are dedicated to providing clear, objective, and compassionate advice and guidance each step of the way. Call us at (757) 690-7779 or schedule a free consultation through our website contact form.
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