What should you do if you find yourself looking to separate from your spouse and eventually divorce, but are stuck living in the same house as your spouse for the foreseeable future owing to COVID-19 shelter in place polices and guidelines?
In Virginia, the Courts are largely closed until at least April 24, 2020 and only hearing matters on a limited emergency basis. However, that does not mean that you cannot start the process of divorce out of court by separating from your spouse. In Virginia, a husband or a wife who wishes to get a divorce, but does not have any fault grounds (adultery, cruelty, desertion, etc.) available to them may file for divorce on the “no fault” ground of living “separate and apart” for a statutorily required amount of time. If the parties do not have minor children and have executed a Property Settlement Agreement (or “PSA”), they must live separate and apart for 6 months prior to filing for divorce. If the parties have minor children and/or have not executed a PSA, they must live separate and apart for one year before filing for divorce.
As discussed in our earlier post, it is possible to live separate and apart within the same household. Spouses who wish to live apart under the same roof should take great care not to attend social functions together and not to engage in any sexual relations. Spouses should also separate their finances and personal property to the best of their abilities. After the “shelter in place” requirement has ended, spouses should also occasionally invite third parties into the home who can testify as to the fact the parties had in fact, separated themselves and their belongings. Case law suggests it is okay to share food, and cleaning responsibilities, much like roommates, without destroying a separate and apart time period. See Bchara v. Bchara, 38 Va. App. 302 (2002); Rickman v. Commonwealth, 33 Va. App. 550 (2000).
Because each case involves unique circumstances, it is best to consult with an experienced family law attorney to explore your options. If you have questions regarding living separate and apart from your spouse and need assistance, please do not hesitate to contact our firm at 804-423-1382 or info@wmmlegal.com to schedule a one-on-one consultation with one of our experienced Virginia attorneys.
