Separate and Apart: When Does That Start?

In Virginia, if a husband or a wife with minor children wish to get a divorce, but don’t have any fault grounds (adultery, cruelty, desertion, etc.) available to them, what can they do? The answer is deceptively simple- you can live separate and apart in excess of twelve months and then file for divorce based on the fact that you have lived separate and apart for a year or more. At least one party must prove that it was his or her intent that the separation be permanent, and ultimately lead to divorce, as of the date of separation, and then a party must show physical separation.

Why is this deceptively simple? The answer is because to separate one household into two is rarely easy, quick or financially feasible for many people.  Sometimes parties will try to live separate and apart under the same roof for a least a portion of the one year separation, in order to save funds to effect a physical move, which can create difficulties if not handled carefully. It’s a best practice to utilize separate bedrooms for each party, which should include when possible physical personal belongings (clothing, jewelry, toiletries, etc) for each party. Spouses desirous of living apart under the same roof should take great care not to attend social functions together and not to engage in any sexual relations, and to 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).

Please note, this time period may be shortened to six months under certain circumstances, including where the parties do not have minor children and they have an executed a property settlement agreement (commonly known as a “PSA”).

If you have questions regarding living separate and apart from your spouse, or in need of a divorce, please don’t hesitate to reach out to or 804-423-1382 for assistance with your legal matter. We would like to help.