Dissolving a marriage is one of the most difficult decisions a couple can make. For many, separation offers a way to step back, reassess the relationship, and decide the best path forward. But in Virginia Beach and throughout the Commonwealth of Virginia, separation isn’t just an emotional or practical decision – it also carries significant legal weight.
In fact, separation is the only legal grounds for pursuing a no-fault divorce in Virginia. That means if you and your spouse want to end your marriage without alleging and proving fault, you must first live separate and apart for a set period of time.
Understanding how separation works and how to protect yourself legally is a crucial first step when you are considering ending your marriage. Whether you are contemplating a no-fault divorce, looking to protect your rights during a trial separation, or simply want to understand how separation works and how it may impact you before you make critical decisions about your future, the experienced Virginia Beach separation attorneys at Melone Hatley, P.C. are here to prepare you and offer strategic legal guidance.
What is Legal Separation in Virginia?
Unlike many other states, Virginia does not recognize the concept of legal separation as ordered by the court. Instead, separation is based on a couple’s actions, not a formal court order. While separation may offer a trial period to step away from the marriage for some couples, it is also the only recognized grounds for divorce for those pursuing a no-fault divorce in Virginia.
Separation as Grounds for No-Fault Divorce
Virginia recognizes both fault-based and no-fault divorces.
In a no-fault divorce, neither spouse is required to prove wrongdoing or fault by the other party. Instead, a no-fault divorce is granted based on the grounds of living separate and apart for a specified period of time. Because no-fault divorce doesn’t require spouses to prove marital misconduct, the process is often faster, more cost-effective, and less contentious.
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Required Separation Periods for No-Fault Divorce
Virginia law sets out two specific timelines for separation to file for a no-fault divorce:
- For spouses with minor children or without a separation agreement, there must be a 12-month period of separation before spouses can file for a no-fault divorce in Virginia.
- The required separation period is reduced to six months for spouses without minor children who have signed a written separation agreement that resolves all issues, such as property division, child and spousal support, and child custody.
Furthermore, for the court to accept the separation period as valid, spouses must meet the following conditions:
- Physical separation
Ideally, physical separation means living in separate homes. However, spouses may still be considered separated while living under the same roof, provided they meet certain criteria. - Intent to end the marriage
At least one spouse must have a clear intent to end the marriage permanently and must have communicated that intent to the other spouse. - No cohabitation
Spouses must stop engaging in intimate relations, joint social activities, and portraying themselves as a couple in public or to friends and family.
Failing to meet these requirements can result in the court rejecting a no-fault divorce filing.
Separation While Living in Separate Homes
In Virginia, separation usually begins when one spouse moves out of the marital home with the clear intent to end the marriage. When spouses stop living under the same roof and no longer function as a married couple, the separation “clock” officially begins.
Separation While Living Under the Same Roof
In some cases, spouses may choose to remain in the same home during the separation period, especially when there are financial constraints to consider. However, couples who choose to do this still must live as if they are no longer a couple, meaning they
- Sleep in separate rooms
- Eat meals separately
- Manage their finances independently
- Avoid joint outings or family events
- Clearly express their intent to separate
- Inform friends and family of their separation date
That being said, some courts are reluctant to acknowledge separation for couples who continue to live under the same roof. Because of this, it is important for separating spouses to consult with a knowledgeable Virginia Beach separation lawyer to understand local courts’ criteria and what evidence they look for to prove separation under the same roof.
The Importance of a Signed Separation Agreement
Because Virginia does not offer a formal legal separation through the courts, a couple is still considered legally married until a divorce judgment is issued, even when they live apart. This means a couple’s legal rights and responsibilities toward each other as married spouses remain intact until their divorce becomes final. This is when a separation agreement can be critical.
A separation agreement is a legally binding contract that defines the terms of a separation while a couple lives apart and also serves as a foundation for a final divorce decree. This agreement can cover a wide range of issues, including
- Division of marital assets and debts, addressing how the couple’s property, bank accounts, vehicles, and loans will be handled during the separation
- Child custody and visitation, highlighting who the children will live with and how parenting time will be shared
- Child support and spousal support, including who pays support, how much, and when
- Use of the marital home, addressing who stays in the home and who pays the mortgage or rent
- Health insurance coverage and whether either party will provide insurance for the other or their children
Furthermore, the terms of a separation agreement can be incorporated into a final divorce decree, making it an efficient way to finalize the terms of the divorce.
What are the Risks of Not Having a Separation Agreement?
Without a separation agreement, separated spouses are left without enforceable rules about how they will handle money, parenting, or property division during their time apart. Because separated spouses are still married, this can lead to financial vulnerability, confusion, and serious legal disadvantages.
The lack of a separation agreement means there is
- No clarity over who will pay the mortgage, rent, or household expenses, how joint debts will be handled, who has access to joint accounts, and who has the right to stay in the marital home
- A risk of ongoing liability for debts incurred during the separation, such as new purchases, car loans, unpaid taxes, and credit card debt
- Uncertainty about custody and parenting time, potentially resulting in one parent becoming the default primary custodian
- No formal child support or spousal support obligation
- A risk of one parent taking unilateral action and moving away
While it’s entirely possible to separate in Virginia without a formal agreement, not having one can risk serious legal and financial consequences.
The Role of Temporary or Emergency Court Orders During a Separation
During a separation, especially if serious disputes arise, the court may issue temporary or emergency orders to protect the rights and well-being of both spouses and children. Temporary orders are designed to establish immediate, short-term rules that remain in place until the final divorce decree is entered. Emergency orders are typically issued when there is an urgent concern, for instance, when there are allegations of domestic violence.
Temporary and emergency court orders can address critical issues such as
- Child custody and visitation
- Child and spousal support
- Exclusive use of the marital home
- Responsibility for household bills, marital debts, and insurance coverage
- Prohibiting contact between spouses in cases involving abuse or harassment
While temporary orders are not final, they can strongly influence the outcome of a divorce, especially in areas like custody and financial support.
The Importance of Getting Legal Guidance When Navigating Separation in Virginia Beach
Separation in Virginia is a critical legal step for couples considering their next steps, especially for those seeking a no-fault divorce, where separation is the sole legal grounds for ending the marriage.
Because there is no formal court process for legal separation in Virginia, the decisions you make during this time can have serious, lasting consequences. Drafting a comprehensive and enforceable separation agreement will avoid disputes, help protect your rights, and lay the foundation for a smoother, more efficient divorce process.
If you are considering a separation or are pursuing a no-fault divorce, you should understand the responsibilities, obligations, and risks of separation without legal protection. The Virginia Beach separation attorneys at Melone Hatley, P.C. are here to protect your rights, secure your future, and help you move forward with confidence. Call us today at (757) 296 – 0580 or schedule a free consultation with one of our Client Services Coordinators.
