In Virginia, there are several grounds for divorce, pursuant to Virginia Code 20-91. One of the more popular grounds of divorce in Loudoun County is that based on separation. While ceasing to live together to initiate your separation may seem simple, it can become complicated as you proceed through your divorce.
At Melone Hatley, P.C., our compassionate team of Loudoun County family lawyers can help navigate the process of being separated to ensure that you are able to meet your goals and support you and your family. Get in touch with us today to set up a free case review with one of our Client Service Coordinators.
How to Initiate a Legal Separation in Loudoun County
Under Virginia Code 20-91, before you can begin divorce proceedings based on separation in Virginia, you and your spouse will need to have been legally separated for a certain amount of time.
If you don’t have any minor children, the separation will only need to have lasted at least six months if you have a signed separation agreement. If you do not have a signed separation agreement, you will need to have been separated for one year, according to Va Code 20-91(9)(a). For those with minor children, a year of separation is required before you can move forward and file for divorce.
Separation can be initiated in different ways, depending on what makes the most sense for your circumstances.
Moving Out of Your Shared Home
Since there is no court filing or written agreement required to initiate a separation in Virginia, one spouse moving out of the shared home can be enough to show intent to separate.
Of course, moving out of the marital home may have negative impacts on your overall case if you are not careful. For example, if you are the one who has always paid the mortgage, and you move out and get an apartment, you may still have to pay the mortgage on the home you no longer live in.
Sleeping Apart Under the Same Roof
It is not always financially viable for one of the parties to move out of the shared residence immediately. In some of the Northern Virginia courts, even if you are living under the same roof, you can still begin your separation process. However, you will need to make your intent to separate clear.
You can do this by separating your finances, buying your own groceries, and ceasing to attend events together. Additionally, you can enter into a separate agreement outlining the rights and responsibilities of both parties during the separation period.
It is important to understand what your local court is looking for when it comes to separation.
A Separation Agreement Can Help Protect Your Rights and Ensure a Smooth Transition
During your separation, if you and your spouse can come to terms regarding the financial obligations of both parties, the division of your assets, custody, child and spousal support, and any other issues that need to be resolved, you may be able to create a written contract called a separation agreement.
Having an experienced separation attorney in Loudoun County negotiate and draft the separation agreement or, at the very least, review it will help ensure that all the issues that need to be included are covered and that the terms are enforceable.
Furthermore, your attorney will help you understand what rights you should not be giving up and ensure you get what you are owed out of the divorce. Once the terms of your separation are all in writing, you can enter the agreement as a court order and have the court enforce any part of the agreement if your spouse fails to abide by the agreed-upon conditions.
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A Separation Agreement Can Be a Guideline for Your Divorce
If you are able to come to terms and create a permanent separation agreement, that document will be entered along with our final order of divorce. What this means is that you will not need to go to a trial, and you will have negotiated all terms of your divorce.
You should never negotiate a settlement agreement or separation agreement thinking that you can go back later and change it; because generally you can’t. It is not uncommon for divorcing spouses to sign a separation agreement that contains terms they do not like, only to learn later they are unable to change those terms.
That is why it is very important to never sign anything without consulting with your attorney first. While it is possible to draft a temporary settlement or separation agreement, it must be done carefully.
Child Custody During Separation
If you are living under the same roof during your separation, any agreement you come to regarding child custody and visitation likely will not work once one party moves out. For that reason, it is critical to ensure that any custody and visitation agreements acknowledge they are only temporary.
However, once you are officially divorced and no longer occupy the same residence, a new custody agreement should be worked out.
When negotiating terms for child custody, you must have an experienced Loudoun County custody lawyer by your side to ensure you and your children’s rights are protected throughout the process.
Child and Spousal Support During Separation
During your separation period, even if you’re living under the same roof, a judge can order child and spousal support. When entering into an agreement, you must know that child support and spousal support are very different.
While the court has the power to modify child support agreements, it does not have the power to modify spousal support agreements. Furthermore, the court can only modify child support if there has been a substantial and material change in circumstances since the entry of the last order.
Because child support and spousal support are so important, and violating these orders can lead to jail time, you must secure the services of an experienced Loudoun County spousal support lawyer to ensure your interests are protected and that you don’t agree to terms in the short term that can end up having long term consequences.
Other Conditions to Move Forward With a Divorce in Virginia
In addition to being legally separated from your spouse for the required amount of time, you also need to meet Virginia residency requirements. To proceed with your divorce, at least one party will need to have been a Virginia resident for at least six months prior to filing for divorce.
In addition to your residency, if you have children, you will need to ensure they also meet the residency requirements, as outlined in VA Code 20-146.12.
An experienced Loudoun County divorce lawyer can help you determine jurisdictional issues in your divorce case and whether you should file in Virginia or with another court.
Get Help From an Experienced Loudoun County Separation Attorney Today
Separation is a critical step in the divorce process, and the actions you take during this initial phase can have long-term consequences on your future. Securing the services of an experienced separation lawyer serving Loudoun County can be critical for ensuring that your interests are protected throughout the process.
Contact us today by phone or through our website to schedule your free case evaluation.
