While it takes “two to marry” it only takes “one to divorce.” This means that either spouse can obtain a divorce, even if one party does not want to divorce. In terms of a separation, this also means that it only requires one party to “separate” with the intent that the separation will be permanent and that his or her intent continues throughout the period of separation.
Given this, a “separation” for purposes of divorce in Virginia has two components: (1) an actual separation; and (2) intent of one of the parties to separate permanently, which is maintained throughout the period of separation. While the date of separation is important for many reasons, the most significant is to establish a start date for purposes of filing for divorce in the future (at least in cases proceeding on “no-fault” grounds).
We frequently hear people say that they are “separated” from their spouse, but many often wonder how this “separation” is accomplished. We are regularly asked by clients whether they need a formal written “separation agreement” to prove that they are separated from each other. The short answer is, no, no such agreement is required in order for you and your spouse to separate.
While there is no requirement that parties enter into any “separation agreement,” in some cases, it is advisable for one spouse to advise the other in writing that he or she considers them to be separated. This can be as informal as an email or text message to the other spouse. While not required, such written documentation will likely assist the party in establishing the date of separation for purposes of divorce should his or her spouse dispute the date in the future.
Usually, there is no dispute between parties as to the date they separated from each other. If there is some dispute, the date of separation will be determined by a judge based on the evidence presented to the court at trial.
Often, the date of separation is clear as one of the parties has left the marital home. This type of physical separation is generally straightforward when it comes to proving when the separation occurred.
However, it has become much more common for spouses to separate “under the same roof.” This means that the parties continue to reside in the same house, but they have “separated” for purposes of eventually proceeding with a divorce. There can be several reasons as to why parties choose to separate in the same house, but the main ones usually pertain to the financial implications of maintaining two separate homes and for the benefit of any minor children.
Living “separate and apart” in the same house, while permissible, requires the parties to take additional steps to ensure that they are truly living apart. Most importantly, the parties can no longer sleep in the same room and cannot engage in sexual relations. It is also vitally important that the party that has the intention to separate make it known to friends and family that he or she is doing so.
In addition, there are several additional factors that the Court will look to in order to evaluate if the parties have in fact been living separate and apart in the same house, including, but not limited to, the following:
- The parties have stopped wearing wedding rings;
- Each spouse shops for his or her own food and supplies and prepare his or her own meals;
- The parties do not share food or supplies;
- The parties do not eat meals together;
- The parties do not do each other’s laundry;
- The parties do not socialize together; and
- The parties do not exchange gifts or celebrate holidays, birthdays, or anniversaries.
If a party intends on establishing a separation within the same residence, it is crucial that he or she have a third-party (e.g., a friend or family member) visit the home regularly through the period of separation to observe that the parties are in fact living in separate areas of the house. Should the date of separation become a contested issue, the third-party will serve an essential role in corroborating the facts needed to establish the date of separation.
Lastly, whether one party has left the marital home or the parties are living separate and apart in the same home, the intent to separate must be continuous through the required period in order to file for divorce (either 6 months or 1 year, depending on whether the parties have minor children, if proceeding on “no-fault” grounds). This means that the parties cannot engage in any intimacy or hold themselves out as a married couple. For instance, if the parties continue to engage in the activities listed above, they run the risk of terminating the period of separation. Should this occur, the parties would need to start the entire period of separation over again and the “clock” restarts for purposes of filing for divorce.
The experienced attorneys at Cooper Ginsberg Gray can assist you in navigating the process of separating from your spouse. Visit our website at www.cgglawyers.com or call us (703) 934-1480.