If you are thinking about divorce in Virginia, one of the first questions you need to ask yourself is, “Why am I seeking this divorce?” In Virginia, there are several reasons that you can ask the court for a divorce. One of the most misunderstood grounds for divorce is separation. In order to seek a divorce on the grounds of separation, you have to separate from your spouse.
Legal separation in Virginia Beach is simple and does not require the filing of paperwork in some cases. Most of the courts around Hampton Roads consider you legally separated once you start sleeping separately from your spouse to make the separation permanent. An experienced separation lawyer in Virginia Beach can help.
At Melone Hatley, P.C., our experienced team of Virginia Beach family lawyers will be your partner through your divorce. This means that we will handle your case with compassion and aggressively ensure your rights are protected as you move forward with your separation and begin divorce proceedings.
Reach out to us today to schedule your free initial case consultation with one of our Client Services Coordinators to see the difference a partner can make for you!
Initiating a Legal Separation in Virginia Beach
Pursuant to Virginia Code 20-91, the first step in a divorce based on separation in Virginia is to separate from your spouse. The time you will need to have been legally separated before you can file for divorce may depend on whether or not you have minor children.
Without children, your separation will need to have lasted at least six months before divorce proceedings can begin, but only if you have a signed separation agreement. If you do not have a signed separation agreement, you will need to wait one year. With minor children, separation needs to last at least a year before you can file for divorce.
You can initiate your separation in different ways, depending on which option makes the most sense for your situation.
Living in Separate Homes
Separation can be initiated by either you or your spouse moving out of your shared home. As soon as you stop living under the same roof with the intention of separating permanently, the clock will begin. Before moving out of the marital home, it is dire that you understand all of the ramifications that may come with that move.
For example, if you move out of the home and leave your children with the other parent, that parent will become the de facto primary physical custodian.
Sleeping Apart While Under the Same Roof
In some cases, one party moving out immediately is not financially feasible. However, you may still be able to start the clock on your legal separation even if you remain under the same roof as your spouse. In this situation, you will have to take deliberate steps to ensure that your intent to separate is clear.
That being said, there are some courts around Hampton Roads that will not consider you separated until you and your spouse no longer live in the same household. Separating your finances, buying separate groceries, and no longer attending events together can all help establish separation. Furthermore, you can take pictures, with a date, of your separate living spaces or speak to your family about the date you separated.
In some cases, you may want to draft a temporary separation agreement that outlines certain terms for the pendency of the divorce process. If you choose to do this, be aware that everything you put in the agreement will be enforceable as a contract, so do not put anything in the agreement that you do not want to potentially last forever.
Residency Conditions that Must Be Met to Proceed With a Divorce in Virginia
Meeting the time requirements for separation is not the only condition for proceeding with a divorce in Virginia. You must also meet certain residency requirements. To file for divorce in the state, at least one party needs to have maintained Virginia residency for six months prior to filing for divorce. This means you can move to Virginia and then start your separation period. Once you reach the end of your separation period, you will be able to file for divorce.
Furthermore, you need to be aware that even if you can file for divorce in Virginia, the court may not be able to make a decision regarding the custody and visitation of the children. Under Virginia Code 20-146.12, the children must also meet residency requirements in Virginia.
In these cases, you must consult an experienced Virginia Beach divorce lawyer who can help advise you on your legal rights and whether to file for divorce in Virginia or with another court.
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Having a Separation Agreement Can Help You Protect Your Rights and Lay Out the Groundwork for Divorce
While legally separated from your spouse, if you can reach an agreement regarding how you will divide your assets, both of your financial obligations, custody, child and spousal support and any other issues you need to settle, putting these terms in writing as soon as possible can be critical.
It is important to remember that what you put in writing will likely not be able to be modified in the future, except for custody, visitation, and child support.
When drafting a separation agreement, it is best to have an experienced separation attorney serving Virginia Beach write the document to ensure that all the applicable issues are included and enforceable and that the document, as drafted, actually meets your goals.
After the terms of your separation have been put into writing, you will have legal recourse for enforcing any part of the agreement if your spouse fails to abide by the terms you have agreed upon once you have entered that agreement as an Order with the court.
Your Separation Agreement Can Influence the Terms of Your Divorce
When thinking about a separation agreement, it is important to understand that anything you sign, except for terms regarding custody and visitation of minor children, will be final, and you will not be able to modify the terms unless the other side agrees. Frequently, we see cases where the parties have agreed to something and later change their mind.
Due to the nature of the agreement, it is generally not possible to change the terms of the agreement. That being said, you can sign a temporary agreement that only covers what will happen while you and your soon-to-be ex-spouse are waiting for the final divorce. A well-written separation agreement can go a long way in simplifying the divorce process.
If you are still living under the same roof when you enter into a separation agreement, you will want to ensure that the agreement you are signing is only temporary. It will be important to renegotiate certain terms once you and your spouse are no longer living together.
Child Custody During Separation
If you are still living with your spouse during the separation process, any custody or visitation arrangement you come to will no longer work after you live separately.
However, once your divorce has been finalized, and you no longer live in the same residence, you may work out a new custody agreement. When negotiating child custody terms, having an experienced Virginia Beach custody and visitation lawyer by your side is critical for ensuring your rights are protected during the process.
Child and Spousal Support During Separation
Even if you are living in the same home, a judge can order that one party pay child support and spousal support. In fact, it is very common for judges to order this to ensure that one party is not able to manipulate the other party financially during the divorce.
The parties can come to an agreement regarding support, but it is very important to remember that the laws governing agreements on child support and spousal support are very different.
With child support, the court can modify the amount of support if there has been a substantial and material change–moving out of the home could be considered a change necessary for this modification. Spousal support is much different. If you come to an agreement regarding spousal support, the court is bound by the terms of the agreement.
It is not uncommon for the parties to draft an agreement regarding spousal support only later to find out that it can’t be changed. It is extremely important, whether you are going to be receiving or paying spousal support, to ensure that the terms of the agreement are appropriate. Hiring a Virginia Beach spousal support lawyer is the best way to protect your interests.
Get Started on Your Case With an Experienced Virginia Beach Separation Attorney Today
The separation period after you decide to end your marriage is a critical stage in the divorce process, and your actions during this time can have lasting consequences. Hiring an experienced separation lawyer in Virginia Beach is an essential step in ensuring that your rights are protected throughout your separation and during your divorce.
Contact us today by calling us or completing the contact form on our website to schedule your free case review.
