Overview of Virginia’s Separation Laws
A separation in the legal context is a period of time – typically one year or six months, as explained further below – where both parties are living separately and apart from one another. "Living separate and apart" is a common misconception when it comes to separation laws in Virginia. For example, you do not have to live under a different roof; you could live in the same house but consider the relationship between you (the husband), and your wife, as a person who does not intend to reconcile.
There is no such thing as legal separation in Virginia. You must either be separated or divorced in order to obtain a divorce. So, to simplify the issue, if you are not legally divorced, then you are separated .
For a no-fault divorce, you must wait a year to file for divorce. However, if you have lived separate and apart for six months, you can file for a no-fault divorce as long as both parties agree to the divorce. This cannot be filed if the other spouse has not agreed to the divorce. When you file, you will typically sign an affidavit stating that the parties have lived separate and apart for a period of six months (if neither party contests the divorce).
Under Virginia law, you must wait a year to file for a fault-based divorce. For example, if there has been adultery or abandonment on the part of a spouse, that is a fault-based divorce, and you must wait a year from the date you separated from your spouse, as stated above.
Legal Requirements for a Separation
Before living separate and apart from your spouse, certain legal prerequisites must be met. For example, separation is not legally recognized in some states until a judicial decree is sought. Virginia is different. Before you and your spouse can file for divorce, you must first separate for a minimum period of time – one year or six months with no fault. You may have to meet several other requirements before you can finalize your divorce. As a general rule, at least one of the spouses needs to be a Virginia resident for one year. If you have lived in Virginia for more than six months, the residency requirement is six months. However, if you both live in Virginia and agree to the divorce terms (and exclude the six months waiting period), you can file for divorce as soon as you are separated. Usually, a separation agreement is a good idea and why it is important to file: The separation agreement will include a parenting plan; All matters related to your assets will be settled Important provisions include alimony/alimony waivers; Both spouses agree to live separate and apart; Includes how the parties will address spousal support or provide a waiver to this issue; and Establishes how issues of custody and child support will be handled. As mentioned previously, couples can agree to a divorce waiver (in Virginia) or see if the court has a pre-approved waiver available. An experienced divorce attorney is helpful in preparing the Maumau waiver. It is possible to obtain a no-fault divorce without going through an expensive process or taking a year to finish. Keegan Law recognizes that this is a condition that can happen, and we feel particularly equipped to help individuals navigate this process efficiently, without unnecessary costs or delays.
Separation Agreements: What You Need to Know
A separation agreement is a legal document created by a married couple who mutually decide to live apart. Some married couples set a trial period for their separation while others use separation agreements for a set period of time. Still others may create a Separation Agreement with no specific time period stated in the Agreement. Therefore, there is not one specific reason why married couples choose to enter into a written Separation Agreement. However, one factor that the vast majority of couples have in common, when entering into a Separation Agreement, is the desire to amicably resolve all or most of the issues arising from their decision to be married. If a husband and wife are able to amicably resolve these matters, even in the absence of a Court Order for Support and Maintenance, they will both benefit from having a written Separation Agreement.
A Separation Agreement is beneficial in several ways. First and foremost, it allows the wife and husband to predict the amount of additional support to which they are entitled (if applicable), the property of each person, the debts of each person and how those properties and debts are to be distributed. Typically, once a couple separates, there are no "extra" funds available to support a spouse or their children.
Assuming there are actually extra funds, a Separation Agreement will ensure those funds are available to everyone. Lastly, entering a Separation Agreement prior to filing for divorce may actually act to expedite the divorce process (if necessary). This is important, particularly if the parties are confident they qualify for divorce under the grounds of separation subsequent to a year’s separation.
There are various matters addressed in a written Separation Agreement. Each Agreement is unique to the particular couple. However, there are certain terms that are used in virtually every Separation Agreement. The Agreement should list the parties’ names. Then, it should state the date the husband and wife separated. If the parties also intend to seek a divorce, the separation date is important as Virginia has a one year ground for divorce based on adultery, felony conviction and conviction of certain sexual offenses. (The other grounds include separation for six months and separation for one year.) The Agreement should outline the parties’ respective incomes and expenses to get a true picture of what would be available as extra support. Many people overlook this aspect, but income is necessary to determine the eligibility of spousal support or an award of support from the other spouse. The next terms typically addressed concern the marital property and debts. A Separation Agreement should contain a complete listing of each party’s debts and property. However, many Separation Agreements only address the property and not the debts. The parties should then determine who will be responsible for the debts incurred, i.e. Credit Card Debt. Finally, a Separation Agreement will contain certain provisions regarding health care matters, tax matters and child support if applicable. Provisions limiting the use of confidential information or requiring cooperation in future matters are common. When a couple agrees to enter into a Separation Agreement, it is a good faith effort to amicably resolve what will happen next.
Impacts of Separation on Child Custody and Child Support
The issue of separating from your spouse and the arrangement for custody and support of your children when you do separate is a concern for many of my clients. There are two court systems with specific rules for these issues: Domestic Relations Courts (i.e., Circuit Court) and Juvenile and Domestic Relations District Courts (i.e., J&D Court). These courts have primary jurisdiction over cases involving custody, visitation, and support of children.
The Domestic Relations Court determines custody and supports issues for adult children. Decisions are made from evidence based on the best interest of the child standard during hearings, to determine custody and visitation and support amounts. Prosecutors handle criminal cases, such as nonpayment of support or abduction. The J&D Court also determines custody and support for children under the age of 18. These rules guide the courts in determining custody and support of children while a divorce is in process: The J&D Court has exclusive jurisdiction to determine whether a parent has taken the child or children, or failed to return them under a visitation agreement without sufficient justification. This is called visitation enforcement. The Circuit Court has exclusive jurisdiction over a parent’s independent action for money damages as a result of a criminal violation of a custody or visitation order. This is called contempt (in the Circuit Court) for violation of a court order. The Court can turn custody of the minor child or children over from one parent to the other when there is evidence that doing so is in the best interests of the child or children. Whether or not the court does so will depend on the circumstances in each case. The court has this power whether or not the court awards a divorce to one or both of the spouses.
Financial Effects of Separation
A legal separation does not affect the parties’ liability for marital debts. Accordingly, debts incurred by either party during the marriage are, in the absence of a marital agreement to the contrary, generally the joint responsibility of both parties. Virginia law imposes a duty of support upon both spouses, and entitlement to spousal support exists regardless of which spouse is responsible for debt on a credit card or with a supplier of goods. The general rule is, however, that creditors will look to all of the marital income available for payment of debts. For example, a marital credit card debt owed solely in the name of one spouse, but incurred during the marriage for the benefit of both spouses, "is an obligation of the community which the creditor can collect from [both parties]." Watts v. U.S. Bank, N.A., 248 Va. 373, 375 (1994).
While separation does not necessarily affect income earned from employment, it may affect the overall economic status of one or both parties. A married couple living apart may find that financial adjustments are necessary due to the elimination of one party’s income, as well as to financial changes that may be required by the end of the year to meet the couple’s marital liabilities. For example, while typically a married couple pays joint tax liability in the same year that taxes were collected, as a separated couple, most of those debt obligations will be paid by one spouse, "resulting in a marked shift in his or her economic status…because of the changed needs that require more income for things (such as housing, food, and transportation) that a now-absent spouse" had previously provided. Cleland v. Cleland, 30 Va. App. 1, 12 (1989). In addition, a party entitled to spousal support at the time of separation may suffer a decrease in income that can result in the need for spousal support even if the party was not previously entitled to spousal support.
Legal Separation vs. Divorce: Understanding the Differences
While they may seem like interchangeable terms for the untrained eye, legal separation and divorce are defined very differently under Virginia state law. As referenced above, a legal separation does not end the marriage. A separated individual remains legally married until a divorce is granted, which means they may still be entitled to certain benefits, such as health insurance coverage through their spouse or rights to specific assets. Having these benefits can make separation a preferable option for specific couples over a divorce.
Divorce entails the formal dissolution of a marriage through the legal system. In Virginia there are two major types of divorce—contested and uncontested.
In most cases, it will save the fewest headaches to go through an uncontested divorce process, where both partners assume a collaborative approach to developing the various terms of their divorce agreement (spousal support, division of assets, and both child custody and child support if applicable) . Once both spouses have signed this agreement and filed all necessary documentation, the courts need only approve the uncontested agreement and grant the divorce, usually within 30 days or so.
Once the divorce is granted and processed, the formal, legal separation is over, and both ex-spouses’ lives return to an individual status. If child custody is an element of the divorce agreement, select terms of parental separation remain in effect, while others no longer apply.
Legal separation and divorce are complementary processes, not mutually exclusive. A couple may choose to go through legal separation, then a period of separation before eventually going through the divorce process. However, while some may choose to go the longer route, others may prefer to genuinely go their separate ways without the long, drawn-out process of separation, in which a legal separation can be fundamentally appealing.
Steps to Pursuing a Legal Separation in Virginia
Several steps must be taken when obtaining a legal separation in Virginia. Be sure to contact an experienced Divorce attorney as soon as possible. Your attorney will help you arrange for the important things you must do in order to obtain a legal separation.
- Be sure to make arrangements for living apart as soon as possible. it is very important to take care of the financial aspects of living separately as soon as your spouse has moved out or has been asked to leave. It is also very important to be sure that all bills have been paid. Keep in mind that assets can be moved or sold. Consult with an attorney about preparing a Discovery Request. It could be very important to ask for a list of all bank accounts and other assets, including stocks, bonds, vehicles, etc.
- Request Spousal Support. Many people make the mistake of waiting too long to request spousal support. In Virginia, spousal support is based on several factors, including the length of the marriage, the income of each party, and the standard of living established during the marriage. Virginia judges want to know the date of separation. Waiting five months or more after a husband moves out, for example, can be dangerous if his job title and income change significantly. (This example is hypothetical for illustrative purposes only).
- Be sure that you have the documents you need to get divorced before you file a divorce complaint. You may be entitled to a divorce request package at the time that you request a spousal support order from the Court. It is critical to get this information from your lawyer! You need the documents to find out if you have to pay spousal support, or if you are entitled to spousal support.
- After you determine your financial condition, you are ready to file the divorce complaint with the Clerk of the Court. However, there are other documents that are likely necessary. Be sure to consult with your accomplished attorney to decide which ones you need to file with your Complaint.
Issues Commonly Faced During Separation
Common challenges faced during separation include issues related to child custody and visitation. When parents decide to live separately, the process of dividing time with the children can be extremely difficult. A common dispute involves children over the age of 18 or adult children who are still living at home. Young adults typically do not want to be treated like children, free from household rules. However, divorced parents must ensure that the children abide by the household rules. Disputes often result in bi-weekly or monthly discussions to settle disagreements.
Financial issues often present challenges during separation. A couple must decide how to pay the shared bills, including a mortgage, loans, and credit card statements. Financial turmoil can arise if one party falls behind on payments while living apart. In some cases, the couple may go from living in a comfortable home in a nice neighborhood to two families living in an apartment or in lower-income neighborhoods.
A couple typically experiences changes in income and expenses after separating. If one spouse struggled to make mortgage payments before the divorce, the other spouse may struggle to keep the house after the divorce. The party with less income often moves out of the marital residence while the other spouse pays the mortgage.
A trial court awards a spouse alimony, also called spousal support, based on financial need and ability to pay. Although the duration of spousal support payments depends on the length of marriage, the spouse seeking alimony will be required to modify their lifestyle to reflect their income level. Spousal support may also reduce the household income in a two-income family where both spouses have been employed.
A couple also experiences emotional challenges during the divorce process. Many parents experience guilt about putting their children through a divorce, which can make each interaction with the children emotionally taxing.
Legal challenges include filing a case in the appropriate district court. The legal requirements for filing a divorce include:
A couple with minor children must wait one year to petition for divorce. In cases where minor children are not involved, a couple may file for divorce immediately if both spouses consent to the divorce. Without consent, the waiting period is six months.
Virginia has a two-step process for obtaining a divorce. First, the couple can obtain a divorce by filing a bill of complaint in the appropriate district court. After the six-month or 12-month waiting period, the plaintiff places the case on the court’s docket by filing a motion for referral for trial. The court references the Virginia Rules of Court to determine whether to allow the divorce to proceed to trial.
How to Get Help With Your Separation
While the separation period does not require any legal formalities to be created to be valid in Virginia, those who go through a separation with no formalized terms are likely to run into legal issues at some point in the future. Legal proceedings, including divorce, are much more complicated and stressful when separation issues are left unaddressed. There are many requirements in Virginia law that allow for this period to be as efficient and effective as possible, provided that you take advantage of them by seeking legal assistance and representation.
For example, a request for pendente lite support from the court is one of the most common reasons to seek representation. Pendente lite support is temporary support that caters to the needs of the spouse who will be suffering the most if support isn’t offered . Without intervention from a legal professional, it can often be difficult to communicate the financial circumstances of one individual to the court, and failure to request support appropriately can lead to imbalance even during the separation period, harming both individuals in the long run.
When you are consulting with a lawyer, you should ask them any questions you may have about the separation agreement, the divorce proceedings, legal representation, or any other issues that may arise throughout the separation process. When you obtain the legal representation of a family law attorney, you gain peace of mind by knowing that you will be better off during and after your separation.
