Separation in Virginia

What Is Legal Separation?

In Virginia, married couples who choose to end their relationship must first separate and demonstrate their divorce intention. (Va. Code Ann. § 20-91 (9a).) For divorce purposes, "separation" means that the couple lives separately and apart, without any cohabitation or interruption, for at least one year. Additionally, at least one spouse must declare an intention to end the marriage and file for a divorce. In other words, if you begin living apart, and you both hope that you're going to reconcile, the court will not start the clock on your separation until the date when at least one of you decided that reconciliation isn't possible and the marriage is over.

The most effective way to prove your separation date is for both spouses to sign a separation agreement, which you can present to the court when you file for divorce later. If you don't have minor children, and you and your spouse sign a separation agreement, the waiting period for a divorce is six months.

Legal Separation Versus Divorce

Some states allow couples to ask the court for a legal separation, which entitles the spouses to the same rights as a divorce without legally divorcing. Legal separations are beneficial in cases where a spouse has religious beliefs or other underlying reasons prevent the spouses from filing for an official divorce.

Legal separation is not available in Virginia. Instead, the only option for ending a marriage is for the couple to file for divorce, either a traditional no-fault divorce or a divorce from bed and board. Divorce from bed and board requires one spouse to allege fault, like cruelty, desertion, or abandonment. (Va. Code Ann. § 20-95.) In either type of divorce, Virginia law requires couples to prove that they have been separated for at least one year before the judge can finalize the divorce.

Bed and Board Divorces

A divorce from bed and board in Virginia is similar to a legal separation in other states. Some couples request a divorce from bed and board because of religious objections to divorce. However, others use the legal process to get some relief for divorce-related issues while waiting for the separation time period to pass for an absolute divorce.

The grounds (reasons) for a divorce from bed and board must include at least one of the following:

• cruelty
• reasonable apprehension of bodily harm
• willful desertion, or
• (Va. Code Ann. § 20-95.)

A divorce from bed and board means that at least one spouse is alleging misconduct by the other as the reason for the separation. Although you can begin the divorce process immediately after the conduct took place, the court will only grant a "limited" divorce at first.

The court can award custody, support, and divide property. Still, the spouses remain legally married until the court issues an absolute divorce (which can take up to 12 additional months, depending on the allegations in your divorce complaint.) An absolute divorce is the only way either spouse can remarry in the future.

Separation Agreements

Separation agreements, also known as property settlement agreements, are legal contracts signed by both spouses. In an ordinary divorce case or a "bed and board divorce," spouses can use these agreements to decide any of the questions of custody, child support, property division, debt, and other matters which a court would otherwise have to decide in a court hearing as a part of the divorce. Most separation agreements deal with all divorce-related issues and can even state that neither spouse will file a fault-based divorce.

Separation Agreements are Binding

Separation agreements also provide that when there is a divorce decree or other court order, the judge will "affirm, ratify, and incorporate" the agreement in the court order. In other words, a court can enforce the separation agreement later as a contract, but it will also be part of a court order which the court can enforce through contempt-of-court proceedings. Except for child custody and child support, separation agreements are binding, forever, for both parties. Virginia law allows judges to modify or review child custody and child support decisions at any time when it would serve the child's best interests.

Before You Sign an Agreement

In some cases, one spouse will hire an attorney to draft a separation agreement. In other situations, the spouses will agree to use a joint lawyer or mediator to draft the agreement's final terms. Because a separation agreement is forever binding on both spouses, each spouse should hire an independent attorney to review the document before signing. The court will not protect you from making a bad agreement unless you can demonstrate that you suffered fraud or duress.

Reconciliation

If you and your spouse resume living together as a couple after signing a separation agreement, the law permits the court to void the agreement. However, if your separation agreement includes a reconciliation provision that says it will remain in effect after reconciliation, the court will honor it. Under Virginia law, reconciliation also destroys any grounds for divorce based on the earlier separation or desertion. In other words, if you do reconcile and then later decide to divorce, the court will require you to start the clock over for your separation.