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Separation in Virginia

It is important to know that there is no need, requirement or mechanism to “file” for separation in Virginia. Whether a couple is “separated” in Virginia is a factual determination.

Before a married couple can divorce, they must live separate for the time required by Virginia law and one or both parties must have the permanent intent for the marriage to be over. In cases where parties have minor children, the couple must live separate for one year. When a couple has no children under 18 and signed a separation agreement, the couple must live separate for six months. Spouses who are “separated” in Virginia live separate without “cohabitation” without interruption.

What does cohabitation look like?

Cohabitation usually includes behaviors such as the following:

1. living under the same roof
2. eating together
3. attending events together
4. appearing in public as a married couple
5. going on vacations with one another
6. banking together
7. engaging in sexual activity

A married couple living separately is not typically engaged in the above behaviors. Whether a couple is cohabiting or living separately is very fact-specific. A person should always consult with an attorney on these matters.

It is important to note that a couple must live separate for the required time uninterrupted. In other words, if a couple lives separate for 6 months, but resumes cohabiting for one week, then the period of separation starts over.

Finally, the Court requires that a witness (other than either spouse of the divorcing couple) testify to the separation. In other words, there must be a witness who can confirm and testify from his / her personal knowledge that the couple has been living separate continuously and without interruption.

What are your next steps?

Unfortunately, if one side decides the marriage is over, there is not much the other spouse can do. Whether you are the initiator or not, legal protection is needed. The attorneys at Phillips & Peters can help you navigate unfamiliar (and often scary) waters. We know what you are going through. Some of us have personally been through it. Our team pride itself on taking an empathetic approach to care for our clients’ legal matters. We will help you move forward.